The British Medical Association (BMA) is currently balloting junior doctors about a potential strike on 1, 8 and 16 December 2015. With the results of the ballot set to be announced on Thursday, what can Trusts do to best prepare for potential strike action?
Identify the employees being called to strike and check for anomalies in the notification provided
The BMA must give seven days' notice of strike action. The BMA is not required to to formally name the employees who will be called upon to take strike action, but must describe to the Trust:
- the categories of employees concerned;
- the number of affected employees in each category;
- the workplaces at which they work and the number of them at each workplace;
- the total number of affected employees; and
- an explanation as to how the figures have been reached.
In addition to categories of BMA members who are called out on strike, non-union members in those categories may also legitimately participate in that strike action.
If the notification requirements have been breached then this should be raised with the BMA. An injunction can be sought to prevent the strike going ahead.
Engagement with the BMA at a local level
Seek to discuss and agree with the BMA any particular areas that should be exempt from strike action in order to maintain essential services and safe patient care. Make clear that if the BMA is not prepared to engage in such discussions (and there is no legal obligation on it to do so), then you will contact individual doctors directly. Aside from the professional obligations on doctors recently pointed out by the GMC (see below), there is the possibility of criminal sanctions if an individual strikes knowing that the probable consequences of doing so will be to endanger life or cause serious injury.
Engagement with individual doctors
It remains a personal decision for a member of staff whether to strike or not. There is nothing to prevent Trusts from seeking to discourage doctors from striking or from asking doctors whether they intend to strike in order to enable contingency planning to take place.
Doctors themselves should be asked to confirm whether they intend to be on strike or attend work. Although doctors are not legally obliged to provide this information, it can be contended that this is a professional obligation in accordance with Good Medical Practice. We suggest that:
- individual doctors should be asked to confirm whether they will be on strike or in work;
- the views of consultants in essential services should be sought on whether the number of doctors (who have indicated that they will be in work) is adequate to maintain safe patient care;
- the Trust should revert to the doctors, reminding them of their professional obligations and of the guidance issued by the GMC, to seek to agree arrangements that are adequate to maintain essential services and safe patient care.
What does the GMC say?
The GMC has recently issued guidance to doctors contemplating industrial action. The BMA sought an injunction to restrain the GMC from issuing such advice but were unsuccessful in their legal action.
In particular, the GMC has highlighted that Good Medical Practice says that doctors must make the care of their patients their first concern. They should take reasonable steps to satisfy themselves that arrangements are in place to care for their patients and should not disrupt the arrangements employers have made. Doctors have a responsibility for continuity and coordination of care, and for the safe transfer of patients between different teams. Their actions must not harm patients or put them at risk.
The GMC has advised that all doctors are personally accountable for their professional practice and must be prepared to justify their decisions and actions. It has advised that it would not take action against a doctor for exercising their legal right to take industrial action but it would investigate information suggesting that a doctor’s actions during the taking of such industrial action had caused a patient serious harm, or put patients at risk of serious harm, whatever the motive underlying the doctor’s actions.
Pay and partial performance
If an individual is absent from work because he/she is on strike then he/she is not entitled to be paid for that day. Doctors cannot take annual leave and at the same time participate in strike action. Normal sickness procedures will apply but employers are entitled to ask for proof of sickness.
A Trust should make clear whether it is prepared to accept partial performance of shifts (where a doctor would be entitled to be paid in respect of the time worked but not the time spent on strike) or whether it is not. If not, then it should be made clear to doctors that:
- partial performance will not be accepted;
- pay will be deducted for the full day in the event that a doctor participates in strike action; and
- if the doctor attends work at all then it would be considered to be on a voluntary basis.
Trusts should manage the number of doctors on annual/study leave on any day of strike action so that it is an absolute minimum. Pre-arranged leave should be reviewed so that only essential leave is taken; further leave requests should only be agreed in exceptional circumstances.
Trusts should prioritise services into those that are essential and non-essential. It should be ascertained whether there are doctors who will not be on strike and who have the skills to be transferred to cover essential services.
Trusts cannot arrange, via an agency, for workers to cover the duties that would normally be performed by doctors on strike. This does not mean that existing agency staff cannot continue to carry out work that they have already been engaged to provide. Cover arrangements which Trusts should consider include:
- asking existing staff to perform overtime;
- arranging cover from locums or bank staff directly; and
- accepting support from volunteers.
Seek to agree picketing arrangements with the BMA on a local basis. Picketing must be done peacefully with no threatening or intimidating behaviour. It can only be to obtain or communicate information or to persuade any person to work or abstain from working. The Code of Practice on picketing states that "in general the number of pickets [should] not exceed six at any entrance to, or exit from, a workplace; frequently a smaller number will be appropriate".
Picketing will only be lawful where it is undertaken:
- by a doctor at or near his/her place of work;
- by a doctor who has been dismissed in connection with the dispute at his/her last workplace; or
- by an accompanying trade union official.
There is no entitlement for picketing to be done on a hospital site itself.
Please do contact us if you require further advice or assistance in respect of the forthcoming threatened industrial action.