Junior Doctors' New Strike Threat Is Unlawful -- Should They Be Fired?

06/09/2016 09:50

While claiming to want to "protect" or "save" the NHS, the junior doctors are now putting patients' lives at risk by threatening a series of four 5-day strikes starting on 12-16 September. These 20 days of strikes will entail "full withdrawal of labour" between 8:00 am and 5:00 pm on the days concerned and will affect A&E as well as other departments. Chris Hopson, head of NHS Providers, estimates that this will result in the cancellation of over 500,000 operations plus four million outpatient appointments. [ITV News, 2 September 2016].

It has been reported that "junior doctors being hired to co-ordinate strike action are being paid up to £250-a-day well as expenses for hotels and business-class travel." [The Sun, 3 September 2016, report by Amanda Devlin].

This latest threat comes in the wake of five strikes in January, February, March and April 2016, which resulted in the cancellation of 150,000 operations and outpatient appointments.

Strike Ballots - the Law
In law, any strike action is automatically a breach of contract. To save a strike from being unlawful - and therefore entitling the employer to sack the strikers -- a strike ballot has to be held. But, a valid ballot must follow certain precise rules, the whole point being to prevent strikes which do not have the support of the majority of the employees concerned.

The rules governing strike ballots are laid down by the Trade Union and Labour Relations (Consolidation) Act 1992 ("TULRA"). The only valid strike ballot in the whole of the current dispute was held on 19 November 2015, long before there was any suggestion of 5-day all-out strikes.

TULRA s.234(1) stipulates that a strike ballot "ceases to be effective" a maximum of eight weeks after the date of the ballot. So, the strike action must start within that time. S.233(3)(a) makes it clear that a ballot is needed not only for a trade union to call for its members to strike initially but also to "continue to take part in industrial action". In other words, a fresh ballot is needed for the continuation of a strike. Not only must the employer be notified of any strike ballot, but the notice must state "whether industrial action is intended to be continuous or discontinuous and specifies" the intended dates. [TULRA s. 234A(3)(b)].

Background -- Rejected Contract
On 18 May 2016, after ten days of intensive talks, it was announced that a new contract had been agreed between the BMA and the Government. Johann Malawana, the then junior doctors' leader, described this as "a good deal for junior doctors". Under the agreed contract, all juniors would get a basic pay rise of about 10%, plus a further 10% boost for those regularly working at weekends, plus an extra 37% (down from the current rate of 50%) for weekday nightshift working. However, the junior doctors proceeded to reject the agreed contract. But, as Health Secretary Jeremy Hunt pointed out: "The BMA's figures show that only 40% of those eligible actually voted against this contract, and a third of BMA members didn't vote at all." [The Guardian, 5 July 2016].

Secret Ballot - Only 31.5% in Favour of New Strikes
After the agreed-and-then-rejected new contract, the BMA, the doctors' trade union, seems to have recognised the need for a fresh ballot for the series of full-on strikes starting on 12 September. They did in fact hold a fresh ballot in August 2016 -- but, contrary to TULRA, they kept it secret. It is perhaps not surprising that they chose to keep it from the Government, because the support for full-on strikes was nowhere near the 50% requirement for a lawful strike.

According to documents leaked to the Daily Mail, of the 37,770 junior doctors who as members of the BMA were entitled to vote, only 7,540, or 20%, actually voted, and of those just 31.5% (2,375) voted for the new strikes. In other words, the threatened new strikes have the support of only 6.3% of the total number of junior doctors entitled to vote. [Daily Mail, 4 September 2016, reported by Amie Gordon, Sophie Borland & Vanessa Allen].

Despite the ballot result, the BMA council nevertheless authorised a five-day strike by junior doctors starting on 12 September. When interviewed by Nick Robinson, BMA Chairman Mark Porter repeatedly refused to give details of this council vote but failed to deny that it was as close as 16 votes to 14. [Huffington Post, 1 September 2016, report by Aubrey Allegretti; Daily Telegraph 1 September 2016, report by Henry Bodkin].

The legal position therefore is that the new round of strikes is unlawful and the strikers can be sacked by their employer, the British Government.

Jeremy Hunt's Options
The threat of a whole new series of full-on damaging 5-day strikes puts the ball firmly into the Government's court. How is Jeremy Hunt to react? His options are:

To impose a new contract on the junior doctors. This is the option already announced by Jeremy Hunt. But it is unlikely to succeed, because a legally binding contract must be agreed to by both parties. You can't force somebody to agree.

To threaten to fire all the strikers. In order to be lawful, any new strike action needs to be supported by over 50% of those voting in a fresh strike ballot. In the secret strike ballot held in August 2016 there was insufficient support for strike action: 31.5% is a far cry from 50%. Participants in an unlawful strike can be dismissed. The Government will be afraid to take this step in case it depletes the NHS of junior medical staff. In reality, most junior doctors threatened with dismissal if they fail to report for duty by a given date will probably see sense, remember their obligations to the public under the Hippocratic oath, and go back to work. In any case, are striking medics really indispensable to the NHS who are prepared to play politics with public health and safety? There is no shortage of foreign doctors who would be only too happy to step into the breach.

To activate the Trade Union Act 2016. Amazingly, this relevant law that received the royal assent on 4 May 2016 has not yet been brought into effect! This Act requires a valid strike ballot to have not only the support of over 50% of those voting but also a turnout of at least 50% of those entitled to vote. In (as yet undefined) "important public services", which must surely include the NHS, there is an additional requirement "that at least 40% of those who were entitled to vote in the ballot answered 'Yes' to the question." The Government originally proposed to include a provision allowing employers to hire agency workers to cover for striking employees. This important provision was dropped, but it urgently needs to be inserted for public sector strikes. This would have to be passed through Parliament as an emergency with retrospective effect, which, though exceptional, is perfectly legal.

Author note: Note: Since this blog was written the BMA has announced that the threatened series of 5-day strikes will now start not on 12 September but on 5 October 2016. This does not make the threatened strikes any less unlawful than before -- and it only underlines the arbitrary and unreasonable nature of the strikes.