What does the junior doctors’ strike tell us about UK employment law?

As junior doctors continue strike action against UK Health Secretary Jeremy Hunt’s plans to impose new contracts, there seems to be no easy way out of an increasingly damaging dispute that is dragging the NHS deeper into crisis.

Over 5,000 of non-urgent surgical operations were cancelled during the recent strike action on 6 and 7 April. If no agreement is reached, later this month, doctors across the UK will walkout from A&E and emergency care for the first time in history.

At the eye of this darkening political storm is a short but vital document: the contract of employment. The doctors’ strike is a classic example of a common power struggle between employers and their workers over changes to contract terms.

Put yourself in the doctors’ well-worn shoes for a moment.

If your employer tries to impose changes to your employment contract without your agreement, this is known as a ‘unilateral variation of contract’. The law in this area is complicated, but simply put, a change in the terms of your contract can only occur with your express or implied consent.*

Difficulties can arise when the proposed change is not to your benefit and requires your cooperation. Try as he might, Mr Hunt cannot literally force the doctors to attend work on extra days. So the employer generally needs to negotiate. If no agreement or compromise is reached, the employer has a few options:

• “Throw in the towel”: if the employer realises that the cost of forcing a change of contract terms outweighs the benefits, they may admit defeat and leave the contract terms as they are. This is what success looks like for the junior doctors, but so far, both sides are refusing to back down.

• “Make a proposal and see what happens”: the employer may put its employees on notice of the changes and then take their silence as an acceptance of the new terms. This is a shaky move because sometimes it is not clear that any acceptance has taken place. The key question is whether an employee’s silence could only be because she has accepted the new terms imposed on her.

• “Turning the screws”: the employer may try to make life so difficult for you that you cave-in and agree to the changes. It is important to note that where the employer plans to increase your hours, any act of discrimination against part-timers is prohibited under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. If discrimination against part-timers is occurring, as a general rule, you should raise a formal grievance in response to any mistreatment.

• “Buying you out”: this employer may sugar the pill of a new contract by giving the employee some extra benefits. This could include offering a contribution towards increased childcare costs in exchange for an increase in working hours, for example.

• “Fire and re-hire”: unless your employer is inspired by Sir Alan Sugar, most employers tend to be slow to take this approach and it will usually follow protracted negotiations (and possibly some of the options above). This is a risky one for the employer. I explain a bit more about the mechanics and risks below.

‘Fire and re-hire’

Imposing new contract terms that are not agreed normally requires the employer to serve you with your contractual notice period, terminate your current contract and then offer to re-hire you on a new contract with the proposed changes in it. This move can only be lawful if the full notice period has been given and it is clear that the old contract is being terminated. You will then have to decide whether to lose your job or consent to the changes being imposed.

If you’re dismissed under the old contract, you might have a claim for unfair dismissal and, depending on the facts, there may be issues of indirect sex discrimination for female employees.

Let’s look at these potential claims briefly.

Unfair dismissal

If the employer can show there is a good business need for the change and that it followed reasonable and fair procedures for handling the issue, the result could be a fair dismissal.

The business need is relatively easy for an employer to demonstrate. So in the junior doctors’ example, the government would argue that the changes are justified on the basis that it intends to introduce a 24/7 NHS service and improve patient care.

However, it is often harder for the employer to show that it has adopted a fair procedure that fully considered your circumstances and any alternative employment options.

You may have good reasons for maintaining your current contract terms, due to your childcare arrangements and personal circumstances. The employer should fully explore all these factors before any decision is taken to dismiss. Failure to do so may render the dismissal unfair contrary to section 98(4) of the Employment Rights Act 1996 and give rise to a claim for compensation.

Indirect sex discrimination

Section 19 of the Equality Act 2010 prohibits indirect sex discrimination. This is where an employer applies a policy that is neutral on the face of it, but produces unequal outcomes. The classic example is a requirement that job applicants must be over 6 feet tall. The requirement appears to be gender (and ethnically) neutral, but in practice it is likely to disadvantage women (and certain ethnicities) because in very general terms, women are often shorter than men and some ethnicities are shorter than others.

When an employer tries to impose changes to working hours and shift patterns, the outcomes may indirectly discriminate against women. A number of legal cases accept the general idea that requiring employees to work full-time impacts more heavily on women due to child-care responsibilities. Arguably, the same principle should apply to other increases in hours and changes in shift patterns.

That said, context is everything. There are cases where this approach has been varied in the context of certain types of workers who may be expected to pay for full-time childcare if they choose to. The key point is that you have to show that the requirement places you at a ‘particular disadvantage’ through no choice of your own, rather than it being about a matter of personal preference.

If you are a woman with child or dependent care issues that conflict with the proposed change, it may help to explain to your employer in detail how the change will affect you and your family.

There is a helpful government policy document on this topic: “Part-time workers. The law and best practice – a detailed guide for employers and part-timers” (also called the ‘Best Practice Guide’). It has guidance on recruitment, changes in working hours and emphasises the importance of flexible forms of working. It should be shown to employers during negotiations.

If the change impacts unequally on women, that is not the end of the matter, because the employer may have a valid defence on the basis that the requirement is justified. Indeed, the governments’ assessment of the new doctors’ contract is that while the new contract would impact disproportionately on women, these impacts are “comfortably justified”.

Unless there is objective evidence to show that the current contract is unworkable or highly inconvenient for the employer, the employer may struggle to justify the changes. The necessity of any extra hours must be made clear. The employer may also be expected to show how its position reflects the flexibility expected in the Best Practice Guide.

Where the contractual change is being pursued by a government minister rather than the employer, the minister’s decision may be open to legal challenge. Some junior doctors are seeking a judicial review of the lawfulness of Jeremy Hunt’s decision to impose the contract in the High Court. They will argue, among other things, that the proposed changes impact unequally on women. You can find out more about their action and fundraising initiative at Crowd Justice here (#JUSTHEALTH).

Conclusions

It is often better to try to negotiate the best possible outcome once both sides have clearly set out their stall for and against the changes and, if relevant, taken account of the Best Practice Guide. Dismissal and re-hiring is an unattractive option to most employers. Morale (and service) can plummet.

If you’re negotiating with an employer, you should try to pinpoint the exact reasoning for the proposed change in writing. This should help you to assess the potential strength of any later claim for unfair dismissal and/or indirect sex discrimination.

On the plus side, some negotiations could be an opportunity to achieve some better contract terms than you have already. Consider how best to pitch for this in a way that makes sense to management.

However, the blunt reality is that if no compromise is possible, as it appears likely in the NHS case, you may need to decide whether you can afford to risk losing your job by fighting the changes.

* That’s assuming your contract does not contain a (valid) contractual variation clause. If it does, then there’s not likely to be any scope for disagreement with the changes. Also, where you have agreed to incorporate collectively agreed terms in your contract, your agreement may be inferred from past practices, whether or not you are a member of the union or group that agreed to the new terms.