The NHS is involved in a standoff with many of its locum staff -doctors, nursing and non clinical staff such as IT contractors.

There has been a change to tax rules, -IR 35 -which means that staff who are not regularly employed but are contracted with “off payroll” , -have to now pay the same tax and national insurance contributions as employed workers. This means their take home pay will drop -though most will still be paid a far higher hourly rate than regular salaried staff. for that job. The NHS didn’t make the tax rules but is having to deal with the consequences.

A number of staff, notably doctors, have abruptly withdrawn their availability for shifts, some at very short notice -less than 24 hours -unless the employer pays an increased rate to make up for the tax changes. This has meant that hospitals have had great difficulty in covering those rota gaps at short notice. And some departments such as A and E have been threatened with closure. In my own Trust, we have a heavy reliance on locum doctors to staff A and E as we have not been able to recruit permanent staff, so our A and E has been badly affected.
It was hoped that all NHS employers would” hold the line,” but some Trusts have agreed to pay the higher rate. So staff have moved to work with them, rather than the employer to which they had committed.

So, is this reasonable action by locum staff , who can sell their services to the highest bidder? The law of supply and demand is working well, one could say.
However, the medical regulator makes it clear that reasonable notice should be given if doctors are not available for agreed shifts.

The General Medical Council has warned that any locum doctors engaging in “unreasonable withdrawal” from work could exacerbate pressure on health services and potentially risk patient safety. This is against the professional code of conduct.

It remains to be seen if the action of some doctors will be judged to be “unprofessional. It depends on what you think is” reasonable notice”. It is worth noting that some of these doctors have a long term relationship with certain Trusts -they may be employed on an ongoing basis. What price loyalty?
And since when did we all expect our employers to increase our salaries, when there is a tax rise??

My hunch is that the Trusts will cave in and pay the higher rates, as they have to have continuity of safe services (the result being more strain on the budgets). But it is an unedifying tale.

“Unprofessional behaviour” seems about right to me…


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One Comment

  1. Steve Iliffe says:

    This has been brewing for some time, but the (some say clumsy) application of the IR35 ruling has escalated the conflict between the NHS and agency staff and locums. The English NHS spent more than £3 billion on agency workers and locums in 2014/15 and this expenditure was the driver behind the capping of agency and locum payments in November 2015. The cap was based on no agency staff or locum earning more than staff in post, once adjusted for holiday pay and pensions, was introduced slowly between November 2015 and April 2016, and was guidance rather than a ruling – Trusts could hire above the capped rate to maintain patient safety.

    The cap worked, up to a point. The bill for agency staff (mostly nurses) fell by £900 million in the year after its introduction, but medical locum costs rose. Two thirds (64%) of the locum hours worked between July and September 2016 exceeded the cap, as Trust competed with each other to secure a stable workforce. The breakdown of payments exceeding the cap is revealing. Hourly pay for FY2s was double the cap figure, whilst the average payment for a locum ST3 was 86% above target, and locum consultants received on average pay 32% higher than the cap’s recommendation. We are seeing the consequences of the junior doctors’ dispute on the workforce’s behaviour.

    Then locums started to demand more money to cover the increased tax bill produced by IR35, which in effect shifted locums from being self-employed (a tax advantage) to being treated for tax purposes as employees. When some Trusts declined the locums walked away from their shifts, prompting talk of a Mexican standoff in NHS staffing. Some Trusts seem to have used processes tested during the junior doctors’ dispute to avoid significant staffing shortfalls. Embattled Trusts asked substantive staff to work extra shifts, cancelled non-mandatory training time and consultant supporting professional activities time, and suspended secondments so staff could work on wards.

    Some in NHS management see the current behaviour of some locums as unprofessional, and the GMC has intervened to remind doctors of their professional commitment – once a shift is agreed it should be worked. Sympathisers point out that locums work in a gig economy in which they are treated as an employee for tax purposes but as self-employed for employee rights purposes. The BMA opposed the cap on locum fees last year, in effect sanctioning the current situation.

    What should the NHS do? It is in a seller’s market and has to tread carefully, but at the same time it cannot afford a bidding war, which would be a waste of public money. Some decisive action may be needed to get employers and prospective and actual locums round the discussion table. Trusts may hesitate to refer doctors displaying unprofessional conduct to the GMC because the BMA threatened a boycott, so NHS England (or Employers) may need to make this move. Revenue and Customs might want to investigate the tax affairs of high earners – the 10 highest earning locums between July and September 2016 received £3.5 million. And the Mail and Telegraph noticed what was happening last year, and will not hesitate to name and shame ‘greedy doctors’.

    The NHS has shown it can be flexible. In February it announced rules to prevent Trusts from using agency staff that are also employed elsewhere by the NHS, but paused the policy after the Royal College of Nursing warned it could drive more nurses to work in the private sector. NHS management wanted to follow one of the principles of the junior doctors’ deal, by which Trusts accept that junior doctors can work elsewhere but encourage them to offer their services to their local employer first. This is a start.

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