What you will learn from this guide

This guidance outlines the circumstances in which resident doctors working on the 2002 contract (in Wales, Northern Ireland, and Scotland) are able to refuse non-contractual work if the rate of pay is regarded as insufficient. It sets out what the BMA considers appropriate rates for this work, and how you can refuse non-contractual work if you regard the rate offered as inadequate.

It also explains circumstances in which you may be contractually obliged to perform additional work under your substantive contract to cover for short term and unforeseeable absence of colleagues.

This guide is for doctors in training working under the 2002 terms and conditions of service working in Wales, Northern Ireland and Scotland. Doctors working as clinical fellows or in similar roles in Wales, Northern Ireland or Scotland may also find this guidance useful for considering their own circumstances; however, they should first ensure they understand any additional or different contractual stipulations contained in their own contract.

Cover for occasional brief absences where practicable

There are occasions where your contract obliges you to undertake additional hours of work to cover for absent colleagues for your employer. Paragraph 110a of the 2002 terms and conditions states that resident doctors ‘shall be expected in the normal run of their duties, and within their contract and job description, to cover for the occasional brief absence of colleagues as far as is practicable’. It further states that, for the purposes of this provision, a colleague is ‘another practitioner participating in the same duty rota or shift’.

It then goes further in specifying the circumstances where this duty may arise. Paragraph 110b says that ‘sick colleagues will normally be covered only for short periods of absence’. Paragraph 110d says that ‘practitioners will be prepared to perform duties in occasional emergencies and unforeseen circumstances without additional remuneration but may be granted time off in lieu at the discretion of the employing authority’.

Where circumstances set out above are fulfilled, and where it is practicable for you to do so, you are contractually obliged to provide cover.

This means that, in instances where someone on your rota has fallen sick or otherwise is not able to work or continue their shift for a reason that could not have been foreseen, you may be asked to cover the shift and would be required to cooperate if it is safe and practicable for you to do so.

Whilst it is established practice for some employers to offer pay for the additional hours of work rather than time off in lieu you cannot refuse this work on the basis of the rate of pay.

Some terms in these clauses of the contract are not well defined. The BMA’s interpretation of these terms (which also reflects custom and practice) is as follows:

Providing cover in other circumstances

Outside of these circumstances, the contract states that the employer is responsible for hiring locum tenens. This means that they cannot require doctors in training employed on the same rota to cover absences regularly or for prolonged periods. This includes extended sickness absence, predictable absences (like parental leave), vacancies on the rota, or other absences that are not ‘occasional’, ‘brief’, or ‘unforeseen’. In such circumstances, a doctor in training is required to bring the need for cover to the attention of their employer.

In practice, we know that most employers will use a bank system to advertise additional duty hours to cover foreseeable absences or rota gaps that they have not otherwise been able to cover with a substantive post, or where this arrangement would not be appropriate. Often, this will go out as a notice to doctors on the rota, or more widely, that a shift needs covering with an offer of a rate of pay for doing so. If this shift cannot be filled, it may be offered to a locum agency who will source a doctor to cover it.

We know that resident doctors often feel under pressure to undertake additional duty hours. However, other than in covering occasional brief absences as detailed above, this work is not part of your contractual duties and you are under no contractual obligation to undertake it. The decision to accept additional non-contractual work of this kind rests entirely with you.

Rates of pay for non-contractual work

There are a range of factors you may wish to consider before undertaking such a shift. These include, but are not limited to:

• Other responsibilities, including caring responsibilities
• Levels of fatigue and safe working limits
• Work life balance
• Prior commitments or arrangements outside of work
• Training needs or familiarity with the area the work is being offered in
• Rates of pay being offered

Generally, additional duty hours will be offered at rates of pay set by employers or government. In practice, many employers will offer increasingly higher rates the longer the absence goes unfilled, up until the commencement of the shift in question.

In these circumstances, given you are not obliged to undertake the shift, you may wish to reflect whether the rate of pay being offered is one you would consider fair and appropriate. The BMA has set out what it considers appropriate rates for resident doctors’ non-contractual time in the rate card below.

Because you are under no contractual obligation to accept additional duty hours you are within your rights to refuse such offers where your regard the rate of pay offered as unacceptable. You may wish to consider the rates we have outlined as what would in our view be appropriate in your decision whether or not to accept the offer for additional duty hours/locum work being made by your employer.

These represent what the BMA considers to be appropriate hourly rates for different times of the day and week for non-contractual work undertaken by doctors in training.

Additional rates

• Non-resident on-call rate: We would note that the availability rate for those not called in should be at least 50% of the rates set out above. If you are called in, you should then receive the rate for your shift on top of the availability rate.

Resources

We have produced a number of resources that you can use to discuss rates of pay for non-contractual work with your employer.

Use the template letter, which you can edit to address your own circumstances, to respond to your employer’s offers of additional duty hours.

The conversation between you and your employer

We emphasise that these rates fairly represent what we suggest is the minimum appropriate level of pay for these locum duties.

We would though stress that you must establish the rate of pay that you regard as acceptable before accepting the shift. You are unable to retrospectively agree a rate for a shift you have already agreed to work.

It is important that you are clear when discussing this with your employer, and that you have this agreed in writing.

What is a doctor worth

Junior doctors' skills and commitment have been undervalued for too long.

These rates are already being paid by some employers across the UK. They have been calculated based on data collected from employers and reflect what the BMA considers to be a fair and appropriate rate of pay for a junior doctor undertaking these shifts.

Considering the huge responsibility and onerousness of undertaking additional clinical work beyond your contractual rostered hours, we believe this represents an appropriate rate of pay for locum work.

What you can do

Carefully consider whether the rates of pay offered by your employer justify the loss of your free time, and whether they represent the realistic market value of your training and skills. We believe this should be at least the rates outlined above. There may be circumstances in which your work would be worth more.

This is not only about each individual being fairly paid for their work, but to ensure that everyone’s contribution is fairly valued. We would ask you to carefully consider the rates offered to you for non-contractual work and to not sell yourselves or others short.

Professional obligations

The clinical and professional responsibility you have for your patients does not mean that you must provide services over and above those for which you are contracted. Nor do they prevent you giving reasonable notice to cease doing such additional services. Until new rates of pay can be mutually agreed, the decision to cease undertaking such work should not place a resident doctor in conflict with their obligations under the GMC's Good Medical Practice.

The overall responsibility for maintaining clinical services lies squarely with the employer and not individual resident doctors.

Example responses to employer

Below are some arguments you may hear from your employers in seeking to persuade you to accept offers of non-contractual work based on the rate of pay being offered, as well as some suggested responses.

You cannot hold the department to ransom

This work is non-contractual, and I have the choice to value my time appropriately. I agree with what the BMA defines as appropriate rates and so will not undertake the shift unless you offer £X. It is my right to earn appropriate rates for additional work I do outside of my contract. I would like to help my employer by doing extra work. However, I am not required to undertake the work and will not do so unless the rate offered is appropriate.

You have a responsibility to the patients

I take that responsibility very seriously and will continue to fulfil all aspects of my contract and continue to deliver excellent care. However, I cannot be forced or made to feel guilty about not undertaking extra work in my own time for inadequate rates of pay.

This is a GMC matter

It is not a matter for the GMC and, indeed, threatening referral unless I perform extra work in my own time is coercive. I am committed to delivering everything expected of me under my contract and Good Medical Practice. Whether or not I undertake additional locum work is my choice. I have also given my employer the required notice. I will be reporting the threatened GMC referral to the BMA for its consideration.

You are taking money from other staff

The funding of the health service is a matter of political choice for the government. I am only asking to be paid fairly for work I undertake that is outside of my contract.

You are taking money from patients

The government has a responsibility to provide a health service, it is not the responsibility of individuals. Part of that responsibility is to pay staff appropriately. It’s a political choice.

Your colleagues are agreeing to less

Being non-contractual work, it’s a matter for personal choice.

You’re just being greedy

This is not about being greedy. It is about appropriately valuing the responsibilities I am voluntarily undertaking in these locum shifts and ensuring that the value I bring to the service is recognised.

You’re already well paid

Our pay has fallen significantly, particularly compared with other professionally accountable comparators in other safety critical roles and industries. Resident doctor pay has done markedly worse compared to other staff groups in the health service, who themselves have also received inferior pay uplifts compared with others in the public sector.

There is a financial crisis

It’s not fair that the public sector is expected to pay for every financial crisis when others in the economy do not. NHS staff cannot be expected to subsidise the service with their own pay.

It is not in our budget

It is not my responsibility to ensure that sufficient budget is allocated to pay doctors adequately to provide locum cover.

It’s not professional

What I do outside my contract is a personal choice and plenty of other professionals decline extra work for whatever reason, including if the remuneration is not appropriate.