Yesterday the British Medical Association (BMA) announced that, following a ballot amongst its members, there will be a 24 hour period of industrial action on 21 June.
The reason behind the recent ballot and subsequent decision to take action is as a result of the changes to the NHS pension scheme. The BMA have explained that this will have a particularly significant impact on doctors; they assert that, by way of an example, doctors at the start of their career will typically pay twice as much in lifetime contributions and will continue to work until they are 68.
There were 6 ballots and approximately half of the BMA membership cast votes; this has produced an overall majority in favour of action. In total there were over 52,250 votes cast by doctors, including GPs, consultant doctors, junior doctors, staff associate, specialist and specialty doctors, occupational medicine doctors and public health and community health doctors. They were asked two questions:
- Are you prepared to take part in industrial action short of a strike?
- Are you prepared to take part in a strike?
This will come as little surprise, the group with the largest majorities in favour of taking action were the junior doctors; of the 12,060 junior doctors who voted, 92% endorsed action short of a strike and 82% – the largest majority amongst all groups – affirmed that they were prepared to strike.
Despite the widespread press coverage of the previous public sector industrial action, the results of this ballot are much higher in terms of both those who participated in the ballot and those who have indicated that they are prepared to strike. As a result of that and the sector in which those taking action work the impact of this could be significant and therefore we would urge Trusts to begin making preparations now.
The effects of the action
It has been made clear that the industrial action, whilst causing widespread disruption, will not affect or compromise emergency care; for example GP surgeries, Accident and Emergency, Maternity and other departments will remain open to ensure urgent patients can be attended to. However, non-urgent treatment such as elective surgery and outpatient or routine appointments will be cancelled.
What steps can Trusts take?
From the information available at this stage it appears that the BMA has conducted itself properly so far and, therefore, it is likely there is little that can be done to prevent the industrial action planned for 21 June. However, it is important that employers are aware of the limits of the action that can be taken and the options available to them during it.
There are a number of key points to bear in mind, as set out below:
Who is taking part in industrial action?
In short, the doctors are under no obligation to tell their Trust if they intend to participate in industrial action. However, there is nothing to prevent Trusts asking their doctors; in addition, so long as doctors are not coerced or harassed, Trusts can take steps to ‘persuade’ them to attend work on 21 June. The BMA may also choose to inform the Trusts in advance of the action of which of their doctors are participating; to date the union has stated that they are “sharing its plans for industrial action now so that advance planning can begin with doctors and managers to ensure safe action on the day”, albeit they have not clearly stipulated the extent of the information they will provide (over and above that which is required under legislation).
One thing that Trusts should be mindful of is that during organised industrial action it is not uncommon for other staff (who are not involved in the action) to call in sick. Therefore it will also be necessary to prepare for the risk that some staff may do this. Where a member of staff is on authorised absence (annual leave or sick leave) then they should not automatically be treated as if they are taking part in action and caution should be taken in how this absence is regarded. Without proof that their absence is connected to the industrial action it will be extremely difficult to take any action; a recommended step, therefore, would be to inform staff now that any absences over 21 June will require medical certification. However, if the very person who is required to verify such documentation is striking then it may be easier said than done for staff to secure this!
The unfair dismissal rules in this context are complex and depend on whether the industrial action is ‘unofficial’, ‘official’, or ‘protected’. In this case the action looks likely to be official (i.e. it has been properly organised by the BMA and its members have been balloted) and protected (i.e. lawfully organised in contemplation or furtherance of a trade dispute).
As a result, any dismissal of a participating employee will normally be automatically unfair if the reason for it is that the employee participated in the action.
Trusts are not required to pay doctors if they do strike (although it should be noted that the BMA's planned action does not constitute a strike, i.e. participating doctors are not refusing to work at all) and are not required to pay them for any period in which they are not working. Trusts are also entitled to withhold pay for shifts not fully worked, i.e. they can withhold pay for the whole of a part-worked shift. However, before doing the latter, they must make this clear to the relevant doctors beforehand so as to avoid a claim for a pro-rata payment for the part of the shift that was worked.
We would recommend that Trusts speak locally with unions as soon as possible to clarify the position regarding shifts which partly fall on 21 June. This is to ensure that those taking part in the action know where they stand and, crucially, Trusts can make necessary contingency plans.
For more detail on this issue Trusts should refer to the ESR User Notice “Guidance on Recording Industrial Action”, to ensure that pay is correctly reduced and disallowed day(s) are reported to NHS Pensions.
The rules regarding whether or not other staff members can be drafted in to cover the absent doctors are complicated (and, indeed, further complicated by the fact that those participating in the action are highly skilled).
Reallocating work to staff not taking part in the action can be undertaken so long as the general principle is complied with; this being that staff cannot be forced to perform alternative work if it conflicts with their contract of employment, unless it is reasonable for them to be requested to do so. The appropriateness of the work can be assessed in relation to the member of staff's current duties, position and skills/qualifications. In terms of the reasonableness of any request to undertake additional duties, this is likely to be dependent on whether work is necessary to prevent a breach of a statutory duty or is vital to service provision. On the basis that emergency matters will be dealt with, it could be argued that any request to undertake duties aside from these may not be reasonable.
In addition Trusts should ensure that they do not endanger the goodwill of those staff not participating in industrial action by asking them to perform additional duties that are either unreasonable or for which they are not properly competent to perform.
We would advise that Trusts should check with the relevant professional bodies on the standards of conduct that nurses, midwives and other health professionals are expected to adhere to follow if industrial action is taken. This may help clarify what such members of staff can be asked to do on 21 June.
The use of agency staff on 21 June must be done with caution. Legislation makes it clear that employers cannot replace striking staff with agency workers during official action, or use them to cover existing staff who have been relocated to cover those staff members taking part in action. However these provisions can be bypassed by avoiding the direct use of agency staff; Trust’s can directly employ others on a short term basis; they can engage temporary workers without the use of an agency; or they can use agency workers who are already being supplied to the Trust. However, Trusts must ensure that such action is permitted under their own provisions and policies before making any decisions in this regard.
As above, the effect of the action will be that a large number of pre-arranged appointments will be cancelled. Therefore notice should be provided to those affected patients as soon as possible and alternative appointments offered.
Depending on the type of work undertaken in a specific department and the staffing levels which will be available on 21 June, Trusts may need to decide whether it is necessary to close the whole service for that day. Where possible this should be avoided and a suitable 'skeleton service' should be used. Relevant managers should meet now to begin putting together contingency plans; these should aim to maintain essential service delivery wherever possible and also ensure that health and safety in the workplace is not put at risk.
Further, it must be remembered that contingency plans may need to be devised for a period of time following 21 June so as to clear any service backlog.
Bevan Brittan's employment team
Bevan Brittan has a specialist industrial action team, as well as a large team of employment solicitors who are able to advise on all aspects of industrial disputes. Please contact a member of the team (contact details below) for more information.