Junior doctors’ dispute: where are we now?
BMJ 2016; 354 doi: https://doi.org/10.1136/bmj.i4841 (Published 08 September 2016) Cite this as: BMJ 2016;354:i4841
What are the remaining sticking points in the contract dispute?
The BMA says that it wants the government to lift the imposition of the contract and restart meaningful talks. It says that junior doctors still have serious concerns with the contract, particularly the effects it will have on those working less than full time. The BMA is also concerned about the effects on junior doctors working the most weekends, typically in specialties where there is already a shortage of doctors, such as emergency medicine.
Weren’t these matters resolved when the BMA agreed a deal with the government?
In May Acas (the Advisory, Conciliation, and Arbitration Service), which facilitated talks between the BMA and the government parties, said that an agreement on a new contract had been reached.1 At that time the BMA said that key improvements to the contract, following the talks, included “recognition of junior doctors’ work . . . across every day of the week” and “proper consideration of and provision for equality in the contract.”2
The BMA said that there had also been improvements to flexible pay premiums for specialties such as emergency medicine and psychiatry “to address the current recruitment and retention crisis” and “more rigorous oversight of the new guardian role to ensure safe working for junior doctors.” Despite these reassurances, and support for the contract from Johann Malawana, then chair of the BMA Junior Doctors Committee, in July 58% of junior doctors and medical students in England who took part in a referendum voted to reject the proposed new contract.3
What is the basis of junior doctors’ mandate for ongoing strike action?
The BMA’s mandate for strike action has remained live since the association’s ballot of junior doctors in November 2015.4 Of the 37 155 junior doctor members of the BMA balloted, 28 305 responded to the ballot (representing a 76% turnout), and of these 98% voted in favour of strike action.5
Why did BMA Council have to approve the forthcoming strike action?
It is BMA policy for a committee, such as the Junior Doctors Committee, to take a request to take industrial action to the council, where it must be approved. Previous industrial action was approved at the November 2015 council meeting.
When can a union take industrial action?
The Trade Union Congress says that the law sets many detailed requirements for industrial action including that the action is in relation to a work dispute (this would rule out, for example, action for political reasons); there is a majority in favour of the action; and notice has been given of the industrial action.6
The public services union Unison says that for a union to be immune from liability when taking action there has to be a “trade dispute”—for example, a dispute about terms and conditions or the allocation of work or duties.7 The dispute should be real and substantial, and it cannot be a political dispute—that is, when a union is not really in dispute with the employer but is protesting about government policy, Unison says.
Chris Seaton, a partner at the independent UK law firm Burges Salmon who specialises in industrial relations law, explains that if a strike action by a union is purely a protest against government policy, it is not a trade dispute. Therefore if, for example, there had been broad agreement between the BMA and the government on the terms and conditions of a new contract, and the ongoing dispute was really about government policy, this might open up a potential challenge to whether this was an ongoing trade dispute or a protest against government policy, Seaton says.
He says that, in his experience, whether industrial action is based on a “trade dispute” is rarely challenged. “I have advised on this in the past, but even if there are political undertones it is often not difficult for the unions to argue that the main reason for the dispute is to preserve jobs or working conditions.”
New restrictions on strike action
Changes are set to be introduced to trade union law later this year that will alter the way that unions are allowed to ballot for industrial action in the future. The act will set a six month time limit, which can be increased to nine months if the union and employer agree, for industrial action to take place after a ballot, so that mandates are always recent.8
The act will also require higher levels of union membership to support industrial action for it to go ahead. Seaton explains that a simple majority of those voting will no longer be sufficient. “At least 50% of all eligible members must have voted to make the ballot valid,” he says.
There will also be further restrictions on action that involves health services, which are classed as an “important public service” by the act. Under the rules, the proportion of health workers who have voted in favour of industrial action must account for at least 40% of those entitled to vote, Seaton says. It is estimated that around 46-52% of eligible BMA members voted to strike in the junior doctors’ ballot.9
Seaton says that the forthcoming changes could potentially create significant hurdles in relation to the junior doctors’ dispute. “Of course it was concerns around the disruption to emergency services that was part of the reason for these changes being proposed by the government,” he says.
Footnotes
thebmj.com News Patient safety concerns were chief reason for strike suspension, says BMA doi:10.1136/bmj.i4844; News Views from the frontline: reactions to the strike suspension doi:10.1136/bmj.i4845; Feature It’s time for serious dialogue, not playing politics doi:10.1136/bmj.i4846