Trust Policy & Procedure Document Ref No: PP(15)153 Appeals in Consultant, Associate Specialists & Specialty Doctors Job Planning, Pay Progressions & Threshold Payments Disputes For use in: For use by: For use for: Document Owner: Status: All areas of Trust Specialty Doctors, Associate Specialists, Consultants, Clinical Director & Clinical Leads Appeal in SAS & Consultant Job Planning, Pay Progressions & Threshold Payments Executive Director of Workforce & Communications Final Purpose of this Document: To provide guidance to Trust Staff on the procedures for dealing with Appeals in Job Planning and Pay Progression Disputes for Consultants, Associate Specialists and Specialty Doctors. Contents Page Appeals in Consultant Job Planning & Pay Progressions Disputes Introduction.. 2 Mediation. 2 Formal Appeal 3 Membership of Panel 3 Approving List of 3 rd Panel members 4 Expenses for Appeal 6 Appeals in Specialty and Associate Specialist Doctors Job Planning & Threshold payments Disputes Introduction 7 Mediation 7 Formal Appeal 8 Review 9 Issue date: February 2015 Review date: February 2018 Page 1 of 9
A APPEALS IN CONSULTANT JOB PLANNING & PAY PROGRESSION DISPUTES 1 Introduction 1.1 Where it has not been possible to agree a Job Plan, or a consultant disputes a decision that he or she has not met the required criteria for pay threshold in respect of a given year, a mediation procedure and an appeal procedure are available. 2 Mediation 2.1 The consultant, or (in the case of a disputed Job Plan) the Clinical Director/Lead Clinician, may refer the matter to the Medical Director, or to a designated other person if the Medical Director is one of the parties to the initial decision. Where a consultant is employed by more than one NHS organisation, a designated employer will take the lead (in the case of a disputed Job Plan, a lead employer should have already been identified). The purposes of the referral will be to reach agreement if at all possible. The process will be that: The consultant or Clinical Director/Lead Clinician makes the referral in writing within two weeks of the disagreement arising; The party making the referral will set out the nature of the disagreement and his or her position or view on the matter; Where the referral is made by the consultant, the Clinical Director/Lead Clinician responsible for the Job Plan review, or (as the case may be) for making the recommendation as to whether the criteria for pay thresholds have been met, will set out the Trust s position or view on the matter; Where the referral is made by the Clinical Director/Lead Clinician, the consultant will be invited to set out his or her position on the view or matter; The Executive Medical Director or appropriate other person will convene a meeting, normally within four weeks of receipt of the referral, with the consultant and the responsible Clinical Director/Lead Clinician to discuss the disagreement and to hear their views; If agreement is not reached at this meeting, then the Executive Medical Director will decide the matter (in the case of a decision on the Job Plan) or make a recommendation to the Chief Executive (in the case of a decision on whether the criteria for a pay threshold Issue date: February 2015 Review date: February 2018 Page 2 of 9
have been met) and inform the consultant and the responsible Clinical Director/Lead Clinician of that decision or recommendation in writing; In the case of a decision on whether the criteria for a pay threshold have been met, the Chief Executive will inform the Consultant, the Medical Director and the responsible Clinical Director/Lead Clinician of his or her decision in writing; If the consultant is not satisfied with the outcome, he or she may lodge a formal appeal. 3 Formal Appeal 3.1 A formal appeal panel will be convened only where it has not been possible to resolve the disagreement using the mediation process. A formal appeal will be heard by a panel under the procedure set out below. 3.2 An appeal shall be lodged in writing to the Chief Executive as soon as possible, and in any event within two weeks, after the outcome of the mediation process. The appeal should set out the points in dispute and the reasons for the appeal. The Chief Executive will, on receipt of a written appeal, convene an appeal panel to meet within, where practicable, four weeks. 3.3 The membership of the panel will be: A chairman nominated by the Trust (normally a Non-Executive Director of the Trust); A representative nominated by the consultant; An independent third member chosen from a list of individuals approved by NHS Midlands and East, the BMA and BDA. NHS Midlands and East will monitor the way in which individuals are allocated to appeal panels to avoid particular individuals being routinely called upon. If there is an objection raised by either the consultant or the employing organisation to the first representative from the list, one alternative representative will be allocated. The list of individuals will be regularly reviewed. No member of the panel should have previously been involved in the dispute. To ensure probity and to avoid the perception of any conflict of interest, the appeal panel shall not include any individual who may stand to benefit personally from the outcome of the appeal. For example, the spouse or partner of the appellant Consultant, or a colleague in the same department who may benefit from the decision of the panel. Issue date: February 2015 Review date: February 2018 Page 3 of 9
In the event of an objection raised by either the Consultant or the employing organisation to the independent third panel member, NHS Midlands and East will arrange for an alternative nominee to be allocated from the approved list. Any objection should be made in writing and supported by an explanation of the ground of the objection, which will be kept on record. 4 Approving the list of 3 rd panel members 4.1 In order for fairness and balance to be achieved, the third panel member must be regarded by both parties to the appeal as independent and impartial. This should help to ensure that both parties accept the appeal outcome as a final resolution to the dispute notwithstanding that the final decision rests with the Board of the employing organisation. The appointment process for the third member therefore needs to be seen to be fair. 4.2 NHS Midlands and East and the BMA/BDA will nominate individuals for the lists (see paragraph below) to be held by NHS Midlands and East. Either party will have the right to reject names put forward by the other party. Where a name is rejected, sound reasons must be supplied. If NHS Midlands and East and BMA/BDA locally are unable to agree a list, or have insufficient names to put forward for appeals, they may draw upon the approved list held by a neighbouring NHS Cluster. There shall be four separate lists to be held by NHS Midlands and East, for appeals by: NHS Consultants (other than public health consultants) Dental Consultants Public health Consultants Clinical academic staff There is no reason why individuals cannot by agreement be included on more than one of these lists. 4.3 Each list should consist of equal numbers of names put forward by NHS Midlands and East and BMA/BDA. NHS Midlands and East will monitor the way in which individuals on this list are allocated to appeal panels, to avoid particular individuals being routinely called upon and to ensure a fair and balanced selection process. To ensure equity, NHS Clusters will draw names from the lists randomly. The lists of individuals will be regularly reviewed. In nominating panel members for the approved lists, NHS Midlands and East and BMA/BDA shall consider the key attributes of independence and impartiality required of such nominees. Panel members might be Issue date: February 2015 Review date: February 2018 Page 4 of 9
individuals already engaged in analysis and decision making in separate but related NHS fields such as: Members of dispute, grievance and disciplinary panels Members of inquiry and senior interview panels Complains convenors and assessors (eg for the NCAA) 4.4 This is an illustrative rather than exhaustive list and should not be seen to exclude particular groups of potential nominees. For example, many consultants and NHS senior managers will equally possess the proven skills to help consultants and employers achieve resolution. It is anticipated that the names of many suitable people will already be known to NHS Clusters, the BMA and BDA locally. 4.5 The BMA/BDA will determine via their local offices/regional committees the routes for putting forward nominees to the approved lists. This nomination mechanism will differ for the different lists above. NHS Clusters may wish to obtain from trust and PCTs additional names for joint consideration and incorporation in the lists. 4.6 The parties to the dispute will submit their written statements of case to the appeal panel and to the other party one week before the appeal hearing. The appeal panel will hear oral submissions on the day of the hearing. Management will present its case first explaining the position on the Job Plan, or the reasons for deciding that the criteria for a pay threshold have not been met. 4.7 The consultant may present his or her own case in person, or be assisted by a work colleague or trade union or professional organisation representative, but legal representatives acting in a professional capacity are not permitted. 4.8 Where the Consultant, the Trust or the panel required it, the appeals panel may hear additional expert advice on matters specific to a specialty. The Consultant or Trust as appropriate, shall be responsible for arranging the attendance of their expert witness on the day of the appeal hearing. The Trust shall pay the reasonable travel and subsistence expenses of any such expert witnesses. Unavailability of a witness will not ordinarily be treated as sufficient reason (subject to the provisions of paragraph 10 below) for delaying or adjourning proceedings. 4.9 It is expected that the appeal hearing will last no more than one day. However, the Chair will have discretion to adjourn the appeal hearing in order to call on expert advice where the panel requests such expert advise prior to making their decision, or for any other reason that, in the chair s opinion, would facilitate a full and fair hearing of the issues. 4.10 The appeal panel will make a recommendation on the matter in dispute in writing to the Board of Directors, normally within two weeks of the Issue date: February 2015 Review date: February 2018 Page 5 of 9
appeal having been heard and this will normally be accepted. The consultant should see a copy of the recommendation when it is sent to the Board of Directors. The Board of Directors will make the final decision and inform the parties in writing (normally the next Board of Directors Meeting) and will inform the parties in writing of their decision. 4.11 No disputed element of the Job Plan will be implemented until confirmed by the outcome of the appeals process. Any decision that affects the salary or pay of the consultant will have effect from the date on which the consultant referred the matter to mediation or from the time he or she would otherwise have received a change in salary, if earlier 4.12 Group appeals are admissible under this protocol, by prior agreement between the Trust and consultants concerned. 4.13 The recommendation of an appeal panel in a particular case will not set a precedent unless the relevant parties locally agree otherwise. 4.14 If a non-executive director has been involved in the mediation stage (normally for a medical director), they shall not take part in any subsequent appeal. Any board member involved in the mediation or appeals process for a particular case should not participate in the board s subsequent consideration of the appeal outcome for that particular case. 5 Expenses for appeal The relevant employing organisation shall pay the reasonable travel and subsistence expenses of panel members. Issue date: February 2015 Review date: February 2018 Page 6 of 9
B APPEALS IN SPECIALTY & ASSOCIATE SPECIALIST DOCTORS JOB PLANNING AND THRESHOLD PAYMENTS DISPUTES 1 Introduction 1.1 Where it has not been possible to agree a Job Plan (including Job Plan reviews and interim reviews) or a doctor disputes a decision that he or she has not met the required criteria for a pay increment or threshold in respect of a given year, a mediation procedure and an appeal procedure are available. 1.2 Where a doctor is employed by more than one NHS organisation, mediation and appeals will be undertake by the organisation where the issue arises. 2 Mediation 2.1 The doctor may refer the matter to the Executive Medical Director, or to a designated other person (subject to local arrangements). The purpose of the referral will be to reach agreement it at all possible. The process will be that: The doctor makes the referral in writing within 10 working days of the disagreement arising; The doctor will set out the nature of the disagreement and his or her position or view on the matter; this should be provided in writing and normally within 15 working days of the referral being submitted. The Clinical Director/Lead Clinician responsible for the Job Plan review, or (as the case may be) for making the recommendation as to whether the criteria for pay increments or thresholds have been met, will set out the employing organisation s position or view on the matter. This should be provided in writing and normally within 15 working days of the referral being received. The Executive Medical Director or designated other person will convene a meeting, normally within 20 working days of receipt of the referral, with the doctor and the responsible Clinical Director/Lead Clinician to discuss the disagreement and to hear their views. If agreement is not reached at this meeting, then within 10 working days the Executive Medical Director or designated other person will decide the matter and shall notify the doctor and the responsible clinical manager of that decision or recommendation in writing If the doctor is not satisfied with the outcome, he or she may lodge a formal appeal in accordance with paragraph 3 below. Issue date: February 2015 Review date: February 2018 Page 7 of 9
3 Formal Appeal 3.1 A formal appeal panel will be convened only where it has not been possible to resolve the disagreement using the mediation process. A formal appeal will be heard by a panel under the procedure set out below. 3.2 An appeal shall be lodged by the doctor in writing to the Chief Executive as soon as possible and in any event within 10 working days of receipt by the doctor of the decision. 3.3 The appeal should set out the points in dispute and the reasons for the appeal. The Chief Executive will, on receipt of a written appeal, convene an appeal panel to meet within 20 working days. 3.4 The membership of the panel will be: A chair, being a Non-Executive Director of the Trust; A second panel member nominated by the appellant doctor, preferably from within the same grade; and An Executive Director from the Trust. No member of the panel should have previously been involved in the dispute. 3.5 The parties to the dispute will submit their written statements of case to the appeal panel and to the other party no less than 5 working days before the appeal hearing. The appeal panel will hear oral submissions on the day of the hearing. Following the provision of the written statements neither party shall introduce new (previously undisclosed) written information to the panel. A representative from the Trust will present its case. 3.6 The doctor may present his or her own case in person, or be assisted by a work colleague or trade union or professional organisation representative, but legal representatives acting in a professional capacity are not permitted. 3.7 Where the doctor, the Trust, or the panel requires it, the appeals panel may hear expert advice on matters specific to a specialty or to the subject of the appeal. 3.8 It is expected that the appeal hearing will last no more than one day. 3.9 The decision of the panel will be binding on both the doctor and the Trust. The decision shall be recorded in writing and provided to both parties no later than 15 working days from the date of the appeal hearing. Issue date: February 2015 Review date: February 2018 Page 8 of 9
3.10 The decision of the panel will be implemented in full as soon as it is practicable and normally within 20 working days. 3.11 No disputed element of the Job Plan will be implemented unless and until it is confirmed by the outcome of the appeals process and where appropriate a revised Job Plan is issued. 3.12 A decision which increases the salary or pay will have effect from a date after that which the revised job plan was offered (giving locally agreed period of notice) following the decision of the panel. 4 Review This procedure will be reviewed jointly by Trust Negotiating Committee (Medical and Dental). Author(s): HR and Communications Other Contributors: Trade Union representatives Approvals and Corporate Risk Committee Endorsements: Consultation: TNC (M&D) Issue number: 4 File Name: Charlie S: Personnel/Policies/2015/PP(15)153 Appeals in Consultant et al Job Planning Supercedes: Policy Number PP(12)153 Equality Assessed: Yes Implementation: Policy will be checked by HR manager and Medical Director. Published on the intranet Monitoring: Implementation, compliance, and effectiveness of policy will be monitored by TNC (M&D). 100% of requests for appeals received in the HR Directorate will be handled in line with the policy. Other relevant A guide to Job Planning for Medical staff policies/documents and Guidance for the assessment of Threshold criteria for references: SAS doctors. Additional Information: None Issue date: February 2015 Review date: February 2018 Page 9 of 9