This guide aims to provide you with information on what your employer may ask you to do, within the terms of your employment, and what they cannot expect you to do. In particular, it considers cover for emergencies, short term and long term cover, as well as potential implications on training, pay and what to do if you are being forced into working extra hours.

If your situation is not covered here or you need more information, please contact us for advice.

Background

The Resident Doctors Committee hears increasingly about problems arising from an inability to fill posts on rotas. This is a problem which may be exacerbated by the implementation of EWTD compliant rotas.

Any change in working pattern must occur in accordance with your contract (Terms and Conditions of Service), the guidance issued by the Department of Health, and requires the agreement and involvement of resident doctors locally.

Implications of rota gaps include:

• An increased intensity in workload for resident doctors in post
• Gaps in the delivery of patient care both during the day and for out of hours services
• A potential reduction in training opportunities

Cover for emergencies

Your employer should not ask you to cover for absent colleagues on a long-term basis. However, there are specific circumstances where you may legitimately be asked to cover:

• the 'occasional brief absence of colleagues' (as well as in exceptional emergency scenarios) and
• 'sick colleagues will normally be covered only for short periods of absence', which we interpret to be 48 hours in length. This would not apply to foreseeable short or long term rota gaps.

Such emergency cover should be recognised with either compensatory time off in lieu or with pay.

Lastly, academic trainees can be a special case as they may have additional commitments within the university or department and these should be protected and respected. This could also be the case with sessional doctors or doctors with multiple employers.

Cover for normal activities

Where 9-5 activities are left uncovered by a rota gap (such as inability to fill a post OR the post holder is filling another, vacant role) this should be raised with the responsible consultant and or the clinical director at the earliest opportunity.

Distribution of duties

The delivery of clinical care and distribution of duties should be discussed initially at Departmental level and if necessary at Directorate or Board level. You may be asked to cover some duties, although you are not obliged to work outside your job description or where you think patient safety may be jeopardised.

If you are asked to do so and you feel competent to do so and where it will improve patient care, this would be advisable. However, doing so should not impair your ability to care for the patients already under your care and your existing duties.

Intensity of workload

Intensity of workload is not easily measurable, nor defined within the resident doctors contract. Whatever the intensity of your workload, you should still receive 'natural breaks'. Natural breaks are defined as being a 30 minute uninterrupted break on average every four hours. Failure to receive these on more than 75% of occasions should be identified at monitoring and would lead to the working pattern being ‘non-compliant’ with the New Deal.

Where gaps in the rota are long standing, different ways of delivering service that do not rely on the absent doctors may be needed.

Patient safety

If at any time you feel patient care is being compromised, you must inform your consultant or Clinical Director as a matter of urgency. Paragraph 6 of Good Medical Practice states:

“If you have good reason to think that patient safety is or may be seriously compromised by inadequate premises, equipment, or other resources, policies or systems, you should put the matter right if that is possible.

In all other cases you should draw the matter to the attention of your employing or contracting body. If they do not take adequate action, you should take independent advice on how to take the matter further. You must record your concerns and the steps you have taken to try to resolve them”.

In addition, the GMC guidance Leadership and management for all doctors also states:

“You must be satisfied that suitable arrangements are in place for patient care when staff you manage are off duty, and that effective handover procedures are followed”.

Cover for on call duties

It is important to be alert to potential changes in rota patterns or duties on rotation change-over dates. If your working pattern is altered you may have to work additional hours as a result (for example, if the number of doctors working on a rota was reduced from eight to seven doctors).

If the work that you are routinely doing has changed, you should contact a BMA adviser. If your employer wishes to introduce a change to your working pattern which would increase the number of hours worked, they must get the agreement of the majority of the post-holders even if the band of the post does not change. The Approval to Change Band Protocol should be completed prior to any change in band that is proposed to take place.

Short term gaps

Short term gaps may arise from sickness, late starts or early termination of contract. In these cases, you may be asked to cover additional shifts within the New Deal and EWTD hours and rest requirements and these should be paid, although time off in lieu can be granted.

Long term gaps

Where absences are predictable, for example, where a post has not been filled during the recruitment process, and likely to be long-standing, it is your employer’s responsibility to engage internal or external locums to provide cover.

If you are asked to provide cover in these circumstances, you may wish to consider contacting askBMA for advice on how best to proceed.

Paragraph 110e of the Terms and Conditions of Service states:

In circumstances other than those in b. to d. in the Terms and Conditions, e.g. where cover is required for a practitioner on maternity leave or for a temporarily vacant post, the employing authority (and not the practitioner) shall be responsible for the engagement of a locum tenens to undertake work which in their view must be carried out, but the practitioner shall have the responsibility of bringing the need to their notice. The employing authority shall assess the number of hours required.

Where long term gaps cannot be filled by external locums it is the employing authority's responsibility to find a solution. As a post holder you can agree to help in two ways to cover ‘on call’ or ‘out of hours’ commitments:

• You can agree to increase your hours to cover this (and the rota should be rewritten to incorporate this) and re-monitor to assess the appropriate pay banding immediately after it is changed. This must follow the agreed process for changes to working practice and will require the post holder's approval as well as educational approval from the Clinical Tutor.

OR

• You can agree to self-roster to cover absences as internal locum.

Remember, if you feel you are being pressurised into covering additional hours where the need for a locum has been raised, then BMA members should contact our advisers.

Additional advice

If you feel that you may not be able to achieve your educational objectives within the post due to changes in the working pattern, contact your educational or clinical supervisor initially, but you may also need to notify your programme director, or postgraduate dean, and this is best done as soon as possible.

Locum pay

The standard national internal locum rates are in the latest pay circulars:

However, in England and Wales improved rates can be agreed locally where gaps remain a problem. Payments made via external locum agencies are not subject to the internal locum rates.

Medico-legal aspects

If you are working in your normal position with a duty of care to your patients for an NHS body then you would be covered by NHS indemnity (as per HSG 96/48) for costs arising from clinical negligence claims. If you are performing additional work as an internal or external locum routinely then you should check with your medical defence organisation that they cover you for these periods.

Bullying and harassment

The uncertainty caused by rota gaps may cause stress for staff of all grades and this stress can be compounded when there are gaps on rotas. If you feel that you are being bullied or harassed, for example, to provide extra cover in inappropriate circumstances, help is available. You can call a BMA adviser or find out about other forms of support or read our guidance on whistleblowing.

Likewise, please look out for your colleagues, particularly those who have not been appointed to training posts this year, or who are applying for further posts having secured a time-limited post last year. Many of them are under a lot of stress, and a significant number have indicated in mental health surveys that they have depressive thoughts and even thoughts of self harm.

Your support over the coming months for them will be invaluable, even if that only extends to looking out for those who are not coping well with the stress of the transition process.

Our Peer support service provides a one-to-one confidential space to talk with another doctor, and can be contacted via our wellbeing support services.