Locums “maximise earnings” by working in the Western Isles

Tribunal judge Muriel Robison said the boatrd "has difficulty recruiting consultant psychiatrists"Tribunal judge Muriel Robison said the boatrd "has difficulty recruiting consultant psychiatrists"
Tribunal judge Muriel Robison said the boatrd "has difficulty recruiting consultant psychiatrists"
​An Employment Tribunal has found that a consultant psychiatrist employed by the Western Isles NHS Board was not unfairly dismissed and that the Board was not guilty of disability discrimination.

The case raised by Denitza Mihaylova highlighted the extraordinary costs which the Board faces to cover vacancies with locum staff. In 2023-24, following her dismissal, they paid £1.18 million for cover by two consultant psychiatrists.

The Tribunal ruling commented: “They can earn large sums by doing a full-time role within normal hours and being paid for out of hours including night work at significant rates of pay. They earn at a substantial rate for 24 hours a day in one week and for ordinary ten working hours the next.

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“We heard evidence that the Western Isles is an attractive board for those who seek to maximise their earnings for that reason, and locums can maximise their earning power working full time. Most boards have larger staff and can cover on call through permanent consultant psychiatrists at less cost”.

The board's budget for mental health services last year was £2.8mThe board's budget for mental health services last year was £2.8m
The board's budget for mental health services last year was £2.8m

The Tribunal rejected the submission by Ms Mihaylova’s lawyer that the Board could have limited its costs of cover by offering a “job-sharing” arrangement to two locum consultants. The Health Board’s advocate, Kenneth Gibson, described the prospect of that being acceptable to locums as “vanishing zero”.

Tribunal judge Muriel Robison wrote: “The circumstances of this case are extremely unfortunate. The respondent has difficulty recruiting consultant psychiatrists and having recruited the claimant, who clearly enjoyed her job and living on the island, she became ill such that she could not perform all of her duties.

“It must be a matter of great regret to both parties that the arrangement could not continue. For those reasons, this was a difficult case, but ultimately we accepted that the adjustments made could not continue without an end in sight given the Health Board’s budgetary responsibilities”.

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Ms Mihaylova, who is a native of Bulgaria, joined the Western Isles NHS Board as a consultant psychiatrist in August 2020 and was dismissed in July last year. A year after being recruited, she was diagnosed with myelopathy, a spinal condition which required surgery, and subsequently meant she could not do on-call at night as required by her contract.

Denitza Mihaylova claimed unfair dismissal from NHS Western IslesDenitza Mihaylova claimed unfair dismissal from NHS Western Isles
Denitza Mihaylova claimed unfair dismissal from NHS Western Isles

The tribunal finding states: “The respondent has a clinical and statutory requirement for two full time consultant psychiatrists to provide both inpatient and community psychiatric care, with the need for one in two weekly on-call to ensure consultant psychiatric services.

“The role of the consultant psychiatrist includes: one in two on-call rota; acting as responsible medical officer for inpatients in the acute psychiatric unit as required by the Mental Health Act; weekly ward rounds; outpatient clinics - in Stornoway (weekly), Uist (monthly) and Barra (every two months); attending to patients in police custody; reporting to the sheriff; and home visits to patients in crisis on Harris and Lewis”.

The second full-time permanent consultant psychiatrist had retired in 2018 and the Board was unable to recruit a full time replacement. Between 2021 and 2023 the vacant post for a consultant psychiatrist was advertised eight times with no applicants. Accordingly, that post was filled from 2018 with locums.

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The Tribunal noted: “ There are framework agreements with agencies to supply locums at a capped cost, but such are the difficulties of supply, that health boards such as the Western Isles require to go ‘off framework’ to agencies which are not party to the framework agreement, meaning that the costs are much higher”.

Locums, such as those required for psychiatry, can take advantage of the system and maximise their earnings.Locums, such as those required for psychiatry, can take advantage of the system and maximise their earnings.
Locums, such as those required for psychiatry, can take advantage of the system and maximise their earnings.

A year after Ms Mihaylova’s diagnosis, the Board wrote to advise her that on-call arrangements which took account of her condition had to be revisited due to cost implications “because the cost of engaging a second locum consultant to cover the claimant’s on call was a projected deficit of £750,000”.

The Board sought an opinion from Ms Mihaylova’s neurosurgeon “to determine if she was capable of making informed decisions when called out and fitness to drive during the night”. The response “confirmed that she should not be carrying out on-call duties; or duties that required her to be on her feet for prolonged periods; and that the claimant should not be driving”

Re-deployment options were considered but “when asked to list the type of posts which might interest her, she wrote only ‘consultant psychiatrist’. Due to her specialism, no redeployment opportunities were identified and Ms Mihaylova was dismissed by letter in March last year. The letter noted that since being appointed, she had been on sickness absence for 155 days.

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Evidence from the Board stated that the budget for mental health services for 2022-23 was £2,843,881 and from that for psychiatry the budget was £520,986. Actual locum costs for 2022-23 were £1,073,308 for two locums, including the second locum to cover for Ms Milhaylova, including on-call.

In 2023-24, the budget for mental health services was £4,314,314, with a psychiatry budget of £611,775, while the projected locum spend was £1,179,076 for two locum consultant psychiatrists engaged since Ms Mihaylova’s dismissal.

The Tribunal heard evidence that “there is a national shortage of consultant psychiatrists with 60 per cent of consultant psychiatrist vacancies unfilled. This is the highest vacancy rate of the specialities, putting them in a strong bargaining position”.

Judge Robison concluded: “Considering overall fairness, taking account of equity and the substantial merits of the case, including the size and administrative resources of the employer’s undertaking, we have concluded that notwithstanding the position of the respondent as a public sector body, given the nature of the claimant’s illness and her symptoms, given in particular the prognosis for recovery, and given the costs to the respondent of maintaining reasonable adjustments, whether with two full-time locums or job-sharing locums, that to dismiss the claimant in these circumstances fell within the range of reasonable responses”.

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Ms Milhaylova is now a consultant adult psychiatrist with a London clinic where her profile states that she came to the UK in 2008 and ”gained most of my experience working in different hospitals across England, and most recently – in remote and rural areas of beautiful Scotland”.​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​