What is the junior doctors dispute really about?

Junior Doctors

Junior doctors in the National Health Service in England have voted overwhelmingly to take strike action if the government does not change its mind about a new contract. Just over 37,000 were balloted, 76% responded and 98% voted to strike. Arbitration may now occur, but the first strikes are scheduled for early December.

Junior doctors are doctors in training posts, on their way to becoming consultants or general practitioners. They remain ‘junior’ for between 4 and 10 years, depending on the specialism and their own circumstances, particularly part-time working. They are allocated to the training posts by “Deaneries”, bodies responsible for overseeing training in the NHS. This allocation of posts can separate couples, and is unpopular with doctors whilst being popular with the NHS. Their basic salaries are in the £23,000 to £40,000 range.

Junior doctors have always worked long hours. In the 1970s an 80 hour week was common, and overtime (after 44 hours) was paid at one of third normal time. Not surprisingly, such exploitation was challenged in a three month industrial dispute in the winter of 1975. The result was a commitment by the NHS to reduce hours, and a somewhat improved pay deal that broke the then Labour government’s pay policy without either profession or government admitting it.

Progress in reducing hours of work was slow. Shorter working weeks meant recruiting more junior doctors but also creating more (expensive) consultant posts for the juniors to graduate into. More junior doctor agitation in the 1990s led to the ‘New Deal’ contract in 2000. This contract was designed to reduce junior doctor hours in a phased way by making overtime expensive for the hospitals employing them. It was punitive towards employers and financial beneficial to some junior doctors – those working frequent long shifts. It was assisted in its aim by the European Commission’s Working Time Directive (introduced in 2004), which specifies hours of work, work breaks and recovery time.

The New Deal contract was built around pay bands. The chart below over-simplifies a complex pay deal, but gives a flavour of the financial rewards (to the doctor) of out-of-hours work. The normal working week is defined as 7am to 7pm, weekdays; out-of-hours work begins at 7pm on weekdays and includes all Saturday and Sunday. A junior doctor working 56 or more hours per week, on average, would double his/her salary. The basic salary increases each year.

Band
Working hours
Salary uplift
1A
Between 40 & 48/week on average –high frequency out of hours work
50% (1.5)
1B
As for 1A, but medium frequency out-of-hours work
40% (1.4)
1C
As for 1A, but low frequency out-of-hours work
20% (1.2)
2A
Between 48 and 56/week on average – high frequency out of hours work
80% (1.8)
2B
Between 48 and 56/week on average – low frequency out of hours work
50% (1.5)
3
Over 56 hours/week on average
100% (2.0)

New Deal banding is applied to a group of junior doctors in a rota, rather than to individual doctors, for reasons of efficiency. A snapshot of data can be taken across the whole rota, rather than having to count the hours of each doctor for the entire duration of the rota cycle. This also allows any individual variations to be balanced out across the rota. However, this also means that any changes in banding will apply to all doctors on that rota.

The rules about maximum length of duty period and minimum length of time off duty apply one hundred per cent of the time. A single breach of these rules during a monitoring period can make the whole rota non-compliant. In principle, if a single doctor in a Band 2A rota stays at work late or starts early, the result can be that Band 3 payments are made to all the doctors on the rota – every doctor on the same rota will get double pay, even if they have not worked beyond their time limit. The same can occur in any of the Bands.

The current contract is an hours-based rather than a professional contract, focused on working hours, rest time and pay. The system has ensured that doctors can be paid appropriately for the number and pattern of the hours they work. The use of punitive overtime pay to incentivise reduction in working hours has been successful. Since 2007 less than 1 per cent of junior doctors in England have received Band 3 payments. The current average extra payment for junior doctors across England is approximately 45 per cent of basic salary. This reduction in hours has been possible because of the increase in the numbers of junior doctors by an average of 4.5% per year in the first decade of this century. Now that doctors in training are working considerably fewer hours, their average earnings have correspondingly declined compared to previous generations.

Nevertheless NHS Trusts do not like the Banding system. Banding can cost NHS Trusts a lot of money if they end up paying a whole rota extra because one member of it has worked beyond their band limit. It creates adversarial relationships, makes training posts with a higher banding more attractive – which skews the labour market – and does not encourage professional ways of working. Disputes between NHS Trusts and employees about banding can develop during periods when the working hours snapshot is taken, because so much is at stake financially. Annual pay increases are disliked by NHS Trusts because the increment is not dependent on demonstrably increased competence. All this is added to the administrative problem of organising work rotas around complex rules that govern break periods, rest time, the number of long or overnight shifts that are worked in a week, and so on.

Junior doctors do not like the banding system, but for different reasons. Payment for out-of-hours work now constitutes a large part of overall earnings, and so there can be significant variation in income between jobs. This can be a problem for doctors who want to purchase a house, for example, because they cannot predict their future income even in the short term. It may also mean that a junior doctor who moves to a job with higher responsibility but a less intensive working pattern may have lower total take-home pay.

This variability and unpredictability in income adds to financial pressures from increasing levels of student debt and the removal from hospitals of most free junior doctor accommodation. The costs of training and of being a doctor, including mandatory fees for professional registration with the General Medical Council (GMC), membership of a Royal College, examination fees, course fees, certificate of completion of training (CCT) fees and professional indemnity insurance, all rest with the junior doctor. The Doctors & Dentists Review Body (DDRB) has noted that the basic salaries of doctors in training are in the lower quartile for their comparator professional groups. Junior Doctors, whilst well paid at between £30k and £50k per year (including overtime), are beginning to look like members of the ‘precariat’ – especially those with ambitions to work in the of the South East with its over-heated housing market.

The New Deal contract has done its job – of reducing the hours worked by junior doctors – but is now considered obsolete by the Department of Health. Negotiations about a new contract for junior doctors have been underway since 2012. The BMA’s junior doctor negotiators left the negotiations in 2014, in protest at the government’s intransigence, and they have become even angrier since. Industrial action is likely, this December.

The principles – not the substantial terms – of the contract that Secretary of State for Health Jeremy Hunt has proposed include (amongst other things):

The redefinition of normal working hours as 7am to 10pm on weekdays and Saturdays, with nights and Sunday attracting out-of-hours payments;

An 11% increase in basic pay, with pay protection for those who might lose financially;

An end to banding payments;

An end to annual salary increments, with pay linked instead to stage of training;

An upper limit to the numbers of hours worked, and to long shifts.

The response of the BMA junior doctor leadership to these principles has been negative. Redefining ‘normal’ hours to include periods currently reimbursed as overtime will reduce income, although the 11% increase in basic pay will probably offset this for many. The end to banding is seen as a licence for NHS Trusts to exploit junior doctors and make them work more, not less, hours. Abolition of the salary increment is seen as an insult added to the injury of less overtime payment. Limiting hours of work further could lead to a further erosion of overtime pay, whilst shift length and other rules about breaks and rest periods are already in the contract or the Working Time Directive.

Hunt has threatened to impose a new contract based on the principles in August 2016, unless negotiations re-start. This has made the junior doctor ‘precariat’ take to the streets, threaten migration and predict an exodus into better-paid jobs outside the NHS. They see his proposals as a deliberate attempt to worsen of their financial uncertainty. The BMA is supporting its militant juniors, as are many (but not all) hospital consultants. The employers in the NHS Trusts favour the proposed principles, which would simplify out-of-hours payments and reduce their administrative burden, and think the juniors are making a mountain out of a molehill.

It is difficult to know whether Secretary of State Hunt is deliberately promoting a fight, or has blundered into a conflict because he does not understand the undercurrents in the medical profession. He seems unprepared for a dispute. The economic modelling to show who would gain and who would lose from the new contract has not been completed, right up to the strike ballot.

A little history may help clarify this confusion. In 2007 the Blair government tried to introduce an electronic system for matching junior doctor applicants to training programme posts, the Medical Training Application Service (MTAS). The electronic system fell over almost immediately, and caused so much distress to junior doctors that they organised street demos and issued threats of emigration. The government retreated to fix the failed system, but the debacle revealed that 28,000 trainees had applied for 22,000 jobs. The prospect of substantial medical unemployment appeared for the first time in the NHS.

Then in 2012 the Coalition introduced a reform of NHS pensions, ending the final salary pensions that previously made NHS employment such an attraction for doctors. The BMA led a campaign of protests that rapidly petered out, leaving it looking both ineffective and overly privileged. One BMA Council member, Dr Kailash Chand, described the protest as the “wrong fight at the wrong time with the wrong tactics”. In the same year the Coalition introduced the controversial and much challenged Health and Social Care Act that extended market mechanisms into the NHS, in order to reduce system stability and promote competition between NHS and private providers. We can add to this list of conflicts the government’s pressure to implement “7 day working”, and the stresses and strains produced by the short-fall in the health service budget.

Within a few years governments have demonstrated to new entrants to medicine that they face possible unemployment, if successful will work hard in increasingly competitive and potentially unstable environments. At the end of their career they will receive a smaller (although still substantial) pension than their predecessors. The security and stability that the NHS used to offer to its medical staff, even when it was exploiting them, is being eroded. Can we be surprised at the rage of the junior doctors and their apparent determination to strike? Whether they are right about the new contract being a danger to their salaries is almost beside the point.

Much rides on this wave of anger. If the BMA fails to gain concessions from the Secretary of State, it will be damaged. Losing the argument about pensions and being over-ruled in the debates about the Health & Social Care Act have dented its image as the most powerful trades union in the country. Some in the NHS will be secretly pleased if the BMA takes a beating, because some doctors are seen as obstacles to change within the NHS. Angry juniors may decide to organise separately from the BMA, as they did in the run up to the 1975 dispute. If on the other hand the BMA does force Hunt to back down, his job must surely be under threat, especially if public perception continues to favour the junior doctors. The task he was given by the Prime Minister was to keep the NHS out of the headlines. We shall see in December whether this clash is once again the “wrong fight at the wrong time with the wrong tactics”, or a climb-down for the government.

Steve Iliffe took part in the 1975 junior doctors’ industrial action in 1975 as a House Officer at Leicester Royal Infirmary, and was co-author of the history of the dispute, “Pickets in White”, published by the Medical Practitioners Union in 1977.

Jane Bernal, Jill Manthorpe and Linda Patterson commented on drafts of this account, but are not responsible for its contents.

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