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can I ask junior doctors if they are going to strike?

20 November 2015

The recent vote by junior doctors in favour of industrial action will have all NHS employers considering their contingency plans. There is no doubt that strike action could cause significant disruption, particularly days two and three of the proposed strike  which will involve a complete walk-out and will not be limited to junior doctors providing non-emergency care.

Early communication with doctors is essential to minimising disruption and protecting the safety of patients. This should involve discussions with the BMA to establish whether there are areas of care that will be exempt from industrial action.

The Chief Executive of the General Medical Council yesterday (Thursday) reminded all junior doctors of their duty to take reasonable steps to satisfy themselves that arrangements will be in place to care for their patients and to inform their senior colleagues and their employers of their intentions in good time.  It is entirely lawful (and consistent with the statement from the GMC) for Trusts to seek to establish how many doctors intend to strike and to remind doctors of the implications of striking. It is also lawful for Trusts to  contact junior doctors directly and draw their attention to the GMC statement and remind them of their duties, although care should be taken over the tone of any direct communication.  

There remains the possibility (however remote it may seem at the moment) that the parties will be persuaded to return to the negotiating table to avoid strike action. However, discussions with junior doctors and with their senior colleagues who will be called upon to provide cover need to begin in earnest now to place Trusts in the best position to provide a safe and effective service to patients.  

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Tuesday 1 December 8am to Wednesday 2 December 8am - Emergency care only – junior doctors will provide the same level of service that happens in their given specialty, hospital or GP practice on Christmas Day. 

Tuesday 8 December 8am to 5pm - Full withdrawal of junior doctors' labour 

Wednesday 16 December 8am to 5pm - Full withdrawal of junior doctors' labour

The BMA have advised that Doctors who are on shift when the strike begins cannot just walk out. As per the GMC’s Good Medical Practice, doctors must carry out an effective handover.
All BMA members who hold a contract with an NHS Employer in England (whether solely or in addition to a non-NHS contract), excluding any armed forces trainees. This will include GP trainees, locums, trust grade junior doctors and overseas junior doctors. 

Members of the BMA who have not been balloted (e.g. consultants) but choose to take part in the industrial action will also be protected.

The law makes no distinction between members and non-members in terms of the protection when taking part in industrial action. Non-members who take part in any action do so at their own risk and the BMA have confirmed they will not support them. The BMA are however encouraging junior doctors to join the BMA in order to secure protection if they wish to strike.
It is illegal for an employment business to supply the employer with agency workers to perform the duties of staff that are striking. Nursing agencies would certainly fall under the definition of “employment business”. Trusts supplying staff to each other would also be caught by these restrictions. However, bank staff, volunteers and locums (not engaged through an agency) would be permitted as would temporarily redeploying staff into the more critical areas (as long as their contract permits this).
Employers can try to discourage employees from participating in strike action but the language should be measured and conciliatory.
Those not scheduled to work on a particular day of action cannot be subject to a deduction of wages as they are not technically in receipt of pay for that day in any event. However, they are entitled to join in organised activities on the day.
Doctors who are absent on sick leave and or maternity when industrial action takes place retain their right to pay during the period of industrial action. As the employer you will need to make a judgement as to whether the employee should be regarded as on sick leave/maternity or if they are doing anything consistent with taking part in the strike action. 

Likewise, those on pre-booked annual leave should be paid unless they do anything that is consistent with taking part in the strike action. However, there is nothing to prevent you from refusing annual leave requests on the run up to the strike. 

You are permitted to ask any member of staff who was absent during a strike day whether they are on strike.

Under section 240 TULRCA (Trade Unions and Labour Relations (consolidation) Act) a person commits an offence who wilfully and maliciously breaks a contract of services or hiring, knowing or having reasonable cause to believe that the probable consequences of his doing so, either alone or in combination with others, will be to endanger human life or cause serious bodily injury or to expose valuable property, whether real or personal to destruction or serious injury.

NHS employers advise that if the BMA refuse to negotiate over exemptions, employers could write directly to doctors reminding them that a failure to attend work to those areas considered critical could render them individually liable. However, the BMA has obtained its own legal advice on this issue which casts doubt on the contention that anyone who participates in a strike knowing that injury could be caused to patients would be committing a criminal offence. It would certainly inflame the situation to suggest junior doctors are striking in the belief that their personal participation would, or would probably, endanger life or cause serious injury. 

Where required by local factors, Trusts are advised to seek to discuss with the BMA whether they will accept any areas of care as being subject to an exemption to their call to strike.

There is no obligation to pay for a day when an employee is on strike. A day’s pay can be deducted for the normal salary for a day in which someone is on strike. 

In the event that strike action leads to partial performance of the contract, (e.g. because the action starts half way through a shift or because a doctor only provides emergency care and will not fulfil other parts of their contract on strike days), the employer can refuse to accept this partial performance and deduct a full day’s pay. Alternatively, it could deduct part of the doctor’s pay for the period they were on strike. If a Trust wants to refuse to accept partial performance, it would need to notify employees in advance that partial performance will not be acceptable and that any work undertaken will be treated as voluntary. Again, Trusts should be mindful that this is a draconian step and may well inflame what is already a sensitive situation.
Doctors on strike may take part in a picket line. Pickets are allowed to try and persuade others to take part in the industrial action. This can be intimidating to all employees (whether they are BMA members or not). Employees may refuse to cross picket lines, in support of those on strike, or may want to cross but fear for their safety if they do so. We recommend you familiarise yourself with the Code of Practice on Picketing. The code sets out key points including guidance on the number of pickets and that pickets should not be abusive or intimidating towards those wanting to work.
In normal circumstances, intimidation or abuse of staff amounts to a disciplinary offence and it would be worth reminding staff that this remains so during a strike. It is no excuse (as unions often argue) that feelings are running high.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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