Managing the junior doctors’ strike

What can NHS Trusts do if they ask striking junior doctors to return to work and they refuse? The news reports last Tuesday (12th January 2016), of Sandwell General Hospital asking striking junior doctors to return to work poses the question of what happens when a Trust asks doctors on strike to return to their work, but they do not agree. Laura Quigley from Hempsons looks at the legalities.
The strike excluded emergency care, but Sandwell declared a ‘Level 4’ incident on Tuesday morning after a high number of admissions and fewer than usual discharges, and required all striking junior doctors who were allocated to ward work to attend work as usual. It is understood that some striking junior doctors did attend and the request was stood down later that day.
Internal action
If junior doctors are striking lawfully, then it is unlikely that a Trust could proceed with any disciplinary action (resulting in a penalty less than dismissal), if they disobey a management instruction to return to work. Whilst there is no statutory protection for detriment short of dismissal in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA), the doctors may have potential claims for breach of contract and /or human rights arguments.
External action
The incentive for the junior doctors to return instead is more likely to come from potential action from the General Medical Council (GMC) or from section 240 of TULCRA.
Junior doctors have professional obligations including compliance with the GMC Guidance: Good Medical Practice. This requires them to make the care of patients their first concern, and ensure they have taken reasonable steps to satisfy themselves that arrangements are in place to care for their patients during the planned action. Any breach of this could result in disciplinary action by the GMC.
Section 240 of TULCRA provides for criminal prosecution of a person who wilfully and maliciously breaks a contract of service, knowing or having reasonable cause to believe that the probable consequence of doing so would be to endanger human life or cause bodily injury. As a criminal offence there is the potential of a fine or imprisonment.
However, it is not thought that there has never been a prosecution pursued under section 240 in all the years it has been in force. The obvious unattractiveness of involving the police in industrial action, along with the difficulty in the CPS proving that an individual doctor has maliciously caused or risked harm to a specific patient during industrial action, explains the lack of reliance on this section.
Practical tips
1.    If a request to work needs to be made during a strike then a reminder by the Trust to junior doctors of their GMC obligations is likely to have more influence than referring to section 240.
2.    Otherwise, the Trust must rely on the goodwill of junior doctors to come back in to work if asked to do so. This goodwill should not perhaps be underestimated. Provision by the Trust to the junior doctors of the full facts of the situation which requires them to come off strike, when making the request, can only assist.
Laura Quigley, Senior Solicitor, Hempsons
Movement to Work, a collaboration of UK employers that aims to tackle youth unemployment
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