Trainee doctors pay – your rights explained
Two of the biggest hitters for trainee dissatisfaction are mix-ups with pay and rota. These issues can have a significant financial impact and affect your well-being and quality of life.
We asked Glasgow based employment lawyer Scott Milligan some common questions to enable a better understanding of our legal rights. The legal framework for employment law is common across the UK, therefore applicable to all trainees in the UK.
What is the correct pay for my stage of training?
Pay scales for the 2002/2016 contracts can be found online for specific nodal points in relation to your clinical experience or training year. The terms and conditions of service for Doctors and Dentists in England and Wales (2016) state a doctor ‘shall be paid a basic salary at a nodal pay point linked to the grade and the level of responsibility required in the post to which they have been appointed’ based on working 40 hours per week. Less than full-time trainees are paid pro rata based on the proportion of fulltime work agreed [1].
Information on pay scales for trainees in the different countries can be found at: England [2]; Scotland [3]; Northern Ireland [4]; Wales [5].
The new RCoA curriculum 2020 is currently being reviewed by the GMC (as of January 2020), including how the additional core training year will affect (or not!) trainees transitioning between curricula. Discussions on pay protection for those on the 2016 trainee doctor contract are ongoing for the stand-alone CT3 year in transitioning to the new curriculum [6].
What’s my study leave budget?
Health Education England has no specific annual allowance per se, but may limit the budget spend per course or event in some areas [7]. Trainees in Scotland have £500 p.a. [8] and in Northern Ireland trainees have a budget of £1250 p.a., with a maximum remuneration allowed per event depending on the necessity of training [9]. The budget for trainees in Wales is £600 p.a. [10].
It must be within my rights to be paid properly! What happens if I get paid incorrectly?
Unfortunately, mistakes in pay will happen. For those on fixed monthly salaries, it is unlikely to happen too often, but for those on shift work (or paid commission), it is more likely. There are often issues that arise when doctors in training move hospital during rotation without a lead employer. There are rights enshrined in law designed to offer redress both internally and externally, if ultimately required.
What are the internal options?
First, it would usually be to raise the matter informally, either with line management, through HR, or payroll department. If the error is not remedied, or you view the circumstances to be serious to warrant it, a formal grievance can be raised. This escalates the situation and requires your employer to carry out an investigation and hold a grievance meeting to hear your complaint. If you are not happy with the outcome, you are entitled to an appeal.
What are the external options?
If the internal process does not resolve the situation, and there has been an underpayment of wages, you can raise a claim in the employment tribunal for what is known as ‘unlawful deduction from wages.’ This is a claim under the Employment Rights Act 1996 that covers both underpayments and unauthorised deduction from wages.
An employment tribunal claim can be made for the shortfall in salary and subsequent financial loss as a result of underpayment (such as bank charges etc) and there is no limit to this amount. Time limits are strict, however. ACAS, the conciliation service, must be contacted to commence the early conciliation process (which is required before a tribunal claim is raised) within three months of the date of the underpayment. Note, an ongoing grievance process does not extend the deadline for raising a claim.
Do I have more rights if it keeps happening?
Ultimately, the employer is likely to be in breach of an express contractual term and the implied term of trust and confidence that is found in every employment contract. This could give rise to a right to resign and claim constructive dismissal, but this is very much a last case scenario.
What if I get over-paid?
Unfortunately, there is no entitlement to keep an overpayment. An employer can deduct any overpayment from future salary, or otherwise sue for the return of the money, so don’t treat any overpayment as a hard-earned bonus!
Is there a maximum in law that I can work – the contract says it's 48 hours per week?
Under the Working Time Regulations (WTR) 1998, the maximum average working week is 48 hours. This is an average over a 17- week period, so it is legal for this to be exceeded occasionally. It’s possible to opt out of this maximum by signing specific opt-out paperwork, normally a separate document not within a contract of employment. It is possible to opt back into this average working week by giving appropriate notice that you wish to do so.
What about rest breaks?
In law, a worker is entitled to a 20 min unpaid break if they work for more than six hours [11]. Of course, most employers will offer an enhancement to this entitlement, and in fact, the England trainee contract (2016) states doctors should have a 30-min break for a shift of more than five hours; an additional 30-min break for a shift of more than nine hours; and a third 30-min break in night shifts rostered for more than 12 hours [1].
There is also an entitlement to a daily 11-h rest break per 24-h period, and a weekly rest period of 24 h (or 48 h per fortnight). Unlike the average working week, a worker cannot opt out of these rights (unless collectively negotiated), but there are exceptions that an employer can offer compensatory rest in some circumstances where these entitlements cannot be respected.
Are doctors different in law?
There is no distinction under the WTR for doctors as opposed to other workers, but there may be contractual provisions or workforce agreements that apply that will give further rights other than the above, for example in relation to night and rota working.
How far in advance should I receive my roster?
A rota is a template of working hours, a roster is a populated rota with trainees. The advanced roster should be received six weeks in advance in England [12] and four weeks in advance for those on the 2002 contract. Health Education England is aiming to increase advanced roster notification to eight weeks [13].
What if I work a bank holiday?
If scheduled to work at any time on a bank holiday or have a scheduled rest day on a bank holiday, you are entitled to a day in lieu – i.e. an extra day of annual leave [12].
Additionally, if exception reporting results in acquiring time off in lieu, and you are unable to take the time off in lieu within four weeks of agreement, it will be converted to pay after that 4-week period [14].
How many consecutive days can I legally work?
NHS employers state:
- Maximum of four consecutive shifts where the shift is > 10 h and must have 48 h continuous rest after the conclusion of the fourth shift.
- Maximum of seven consecutive shifts where the shift is < 10 h and must have 48 h continuous rest after the conclusion of the seventh shift.
- Maximum 72 h work in a consecutive 168-h period.
- Maximum of four consecutive night shifts.
Is there a statutory rest period after night shift?
The minimum rest period after any night shift duration, even a single night shift, is 46 hours [14].
What happens if there is a breach of my rights?
It depends on the type of breach. If it is a breach of WTR, an employment tribunal claim can be raised. If it is a breach of contract or workforce agreement, the options are more limited – remedy would primarily be through an internal grievance. Ultimately, the WTR is there to protect the health and safety of workers. Significant breaches can be reported to the Health and Safety Executive, who could take enforcement action in appropriate cases. Employees making disclosures of this type may be protected by the whistleblowing legislation, dependent on the circumstances.
Is anything going to change with Brexit?
The WTR are well-established in law and NHS Employers states WTR are embedded in the terms and conditions of NHS employment contracts; therefore even if repealed, the contractual provisions would continue to apply and thus protect employees.
Conclusions
- Keep up-to-date with your salary entitlement and check your payslip regularly.
- You are entitled to correct pay but sometimes errors occur; these can usually be resolved swiftly by raising the matter with payroll, human resources or your line manager.
- You should receive your roster between 4-6 weeks in advance, depending on which UK constituent country you work in.
- The contract terms and conditions control your employment rights, not Brexit.
Amanda Milligan
Elected Member Association of Anaesthetists Trainee Committee ST7, Glasgow Royal Infirmary
David Nesvadba
Elected Member Association of Anaesthetists Trainee Committee ST7, Aberdeen Royal Infirmary
References
- NHS Employers. Terms and Conditions of Service for NHS Doctors and Dentists in Training (England 2016), 2019. https://www.nhsemployers.org/-/media/Employers/Documents/ Pay-and-reward/Junior-Doctors/NHSDoctorsandDentistsinTraining
EnglandTCS2016VERSION8231219.pdf (accessed 23.03.2020).
- NHS Employers. Pay and Conditions Circular (M&D) 2/2019 R2, 2020. https://www.nhsemployers.org/-/media/Employers/ Documents/Pay-and-reward/Pay-and-Conditions-CircularMD-22019.pdf (accessed 23.03.2020).
- Scottish Government. NHS Circular: PCS (DD). 2019/2, 2019. https://www.sehd.scot.nhs.uk/pcs/PCS2019(DD)02.pdf (accessed 23.03.2020).
- The Northern Ireland Executive Department of Health. HSC (TC8) 2/2016, 2016. https://www.health-ni.gov.uk/sites/default/files/publications/health/hsc-tc8-2-2016.pdf (accessed 23.03.2020).
- Welsh Government. Pay letter M&D (W) 2/2019, 2019. http://www.wales.nhs.uk/documents/M%26D%28W%29%20 2_2019%20-%20M%26D%20Pay%20Circular%202019-20%20 %28V2%29%20-%20PDF.pdf (accessed 23.03.2020).
- Royal College of Anaesthetists. Anaesthetic CCT Curriculum 2020 – Curriculum review update, 2020. https://www.rcoa.ac.uk/training-careers/training-anaesthesia/anaesthetic-cctcurriculum-2020 (accessed 23.03.2020).
- Health Education England, London and Kent Surrey and Sussex regions. Is there an upper limit to how much I can claim from the study budget?, 2019. https://lasepgmdesupport.hee.nhs.uk/support/solutions/articles/7000029623-is-there-an-upperlimit-to-how-much-i-can-claim-from-the-study-budget- (accessed 02.02.2020).
- NHS Education for Scotland. Study Leave FAQs: How much can I apply for? https://www.scotlanddeanery.nhs.scot/ trainee-information/study-leave/study-leave-faqs/ (accessed 02.02.2020).
- Northern Ireland Medical and Dental Training Agency. Study Leave: Hospital Specialty Trainees, 2020. http://www.nimdta.gov.uk/study-leave/ (accessed 02.02.2020).
- Health Education and Improvement Wales, All Wales Study Leave Feedback Process, 2019. https://www.walesdeanery.org/sites/default/files/heiw_study_leave_feedback_paper_final.pdf (accessed 02.02.2020).
- NHS Employers. Section 27: Working Time Regulations. https:// www.nhsemployers.org/tchandbook/part-4-employee-relations/section-27-working-time-regulations (accessed 02.02.2020).
- NHS Employers. Good Rostering Guide, 2018. https://www.nhsemployers.org/-/media/Employers/Publications/NHSE-BMAGood-rostering-170518-final.pdf (accessed 23.03.2020).
- Health Education England. Enhancing junior doctors’ working lives, a progress report, 2019. https://www.hee.nhs.uk/sites/ default/files/documents/Enhancing%20junior%20doctors%20 working%20lives%20-%20a%20progress%20report.pdf (accessed 02.02.2020).
- British Medical Association. Agreed new contract deal for junior doctors in England, 2020. https://www.bma.org.uk/collectivevoice/influence/key-negotiations/terms-and-conditions/juniordoctor-contract-negotiations/agreed-new-contract-deal-forjunior-doctors-in-england (accessed 23.03.2020).