HCSA has produced the following guidance for consultant and SAS members on how planned BMA consultant strikes will affect your work. As further detail emerges, HCSA will update this page.

You may also have seen advice from other organisations. Legal opinions differ and there are various interpretations of contract and employment law. HCSA is confident in our advice, which has been endorsed by the HCSA Executive Committee.

If you are in any doubt about the specific circumstances you face, we have an advice line that will be open for extended hours on strike days. Call 01256 770999 for help or email conspec@hcsa.com.

Key points

• HCSA members should attend work on strike days unless you are also a member of the striking union
• You do not need to tell your employer in advance that you will be working
• You should accommodate reasonable requests and amend your duties within your area of competency
• You do not need to work additional hours on strike days beyond your job plan
• Contact HCSA immediately for any assistance 

Why are HCSA consultant members not striking?

HCSA has announced it will move to conduct a formal ballot of consultant members. This was following our second consultation of 2023. Whereas the first consultation did not return a sufficient majority in favour of action, the second showed clear strengthening of appetite from members with unprecedented turnout.

The timeline for formal ballot will soon be announced. The ballot will determine whether or not HCSA members wish to take strike action. Read more about the upcoming ballot.

Once HCSA has the outcome of a formal ballot, and in the event members vote for strike, the Dispute Committee will then make preparations for strike. Until this point, HCSA members cannot strike. 

Should I attend work on BMA consultant strike days?

HCSA does not have a consultant strike planned and therefore HCSA members should attend work as usual on other unions’ strike days. The exception to this would be in the case of an HCSA member with a dual membership of a striking union.

Should I tell my employer that I will be working on strike days?

You are under no obligation to tell your employer that you will be working on strike days. Employers are within their rights to ask you whether you will be working during the strike in order to establish where cover is required, however you should not be pressurised to provide this information.

Trade union membership is also “special category data” under GDPR data protection legislation so you do not need to tell your employer that you are an HCSA member.

HCSA is of the view that employers should minimise risks to patient safety by planning as if there will be participation in the strike from the entire Consultant body. Whether to tell your employer your plans for strike days is an entirely personal decision for HCSA members.

What are my responsibilities in advance of strike days?

Employers are ultimately responsible for maintaining the safe provision of their services during all times, including during strike action. Employers will receive a minimum of 14 days’ notice of strike action which they should use to plan for the action. A strike is not a sudden unforeseen circumstance, but a planned event.

Clinical directors and department managers should be engaging the consultant body in discussions regarding which services can and cannot operate safely on strike days. NHS Employers have now published guidance that refers to a 'Christmas day service', stating this "should be assessed based on what activity would usually be provided on Christmas Day as this is the level of care the BMA has agreed the consultants will provide. All noncritical activity taking place on strike days should be reviewed in order to release staff to support emergency clinical activity."

HCSA is of the view that employers should minimise risk by planning as if there will be participation in the strike from the entire consultant body. Whether to tell your employer your plans for strike days is an entirely personal decision for HCSA members. You should not feel any pressure to do so.

What are my responsibilities on strike days?

The work environment may be more challenging on strike days and it is important you work flexibly and comply with reasonable requests to maintain a safe service.

The GMC have issued the following guidance: “Doctors may be faced with challenging situations during strike action, whether or not they're participating directly. In both scenarios, doctors will need to use their professional judgement to assess risk and deliver the best possible care for people.”

It is important that HCSA members work in whatever safe way they can, suited to their competencies, to ensure emergency patients stay safe, that they take every step possible to keep patients safely treated in areas and levels of practice in which they are competent and trained, and that they make sure they do not become overcommitted and leave other areas vulnerable as a result.

Schedule 2, para 2 of the 2003 consultant contract, states that: “A consultant is responsible for carrying out any work related to and reasonably incidental to the duties set out in their Job Plan.” This clause provides some flexibility which could require consultants to amend duties on strike days.

All doctors are expected to be flexible and to co-operate with “reasonable requests” from line managers. You may also be asked to deputise for colleagues who are absent, where it is safe and practicable to do so. You may be asked to perform the duties of a striking colleague. In many instances this could be interpreted as a reasonable request. Refusal to carry out such a request could result in your employer taking disciplinary action.

However, clinical safety is a key factor in deciding what constitutes a “reasonable” request. It would not be reasonable to expect a hospital doctor to undertake duties that they are not qualified to perform, or to be asked to carry out duties that would result in an individual being too tired or overburdened to work safely. Further, if you are deputising for a colleague who is absent then you are unlikely to be able to undertake the work that you were previously planned to do. In such a situation, there would still be an impact on the overall amount of work undertaken by the Trust on strike days.

In what ways can I expect my duties to change on strike days?

It is likely that there will be some changes to your normal duties on strike days. You will be expected to comply with reasonable requests.

If a patient is at risk, any refusal to cooperate in assisting with that patient is likely to be considered unreasonable, meaning that you will be more vulnerable to disciplinary action than if the request was to undertake work that was not clinically urgent or was not clinical in nature at all.

We can expect the following requests to be made of non-striking consultants and SAS, which could be deemed reasonable:

• To provide on-call cover and resident on-call cover.
• To comply with swap arrangements, such as to swap an on-call for a clinic or a ward round.
• Part-time consultants and SAS doctors could be asked to rearrange their days of working to facilitate cover.
• If you were due to be undertaking supporting professional activity (SPA) then that activity could be rescheduled for a later date and you should be paid for direct clinical care that you undertake on the day. There is no strict entitlement to this, but it represents a practical solution which ensures valuable SPA time is not lost.

However:

• Any requests made must be within your competence.
• You are under no obligation to work additional hours beyond what is already in your job plan.
• If you are expected to use systems which you are unfamiliar with you should raise this with your employer who may provide training and support.
• You cannot be expected to undertake the work of multiple people as this would not constitute a safe working practice.
• If you were scheduled to be doing a period of CPD, paid time must be made available in future for you to do that CPD.
• If you are working resident at night, then you should not work during the day or the next day and should be paid as per existing policy.

Should I work extra-contractual hours during a Consultant/SAS strike?

HCSA’s position is that doctors should avoid working beyond normal working hours during periods of strike action. This encourages employers to make the fullest possible preparations for a safe service instead of relying overly on overtime.

However, you have an obligation to comply with reasonable requests to ensure a safe service, which could in some cases require non-contractual work, for example within maternity or ICU. In these cases, we advise you seek to reach an agreement with your employer to rearrange the rota to facilitate this within your contractual hours and ensure time can be taken back as time off in lieu as soon as possible.

If the provision of a safe service requires you to work additional hours, this should be paid at the locally agreed enhanced rate.

What happens when the strike finishes?

When the strike period finishes, please remember the importance of continuity of care and communication with colleagues, and the following guidance from the GMC’s Good Medical Practice: “You must contribute to the safe transfer of patients between healthcare providers and between health and social care providers.”

This means you must:

• share all relevant information with colleagues involved in your patients’ care within and outside the team, including when you hand over care as you go off duty, and when you delegate care or refer patients to other health or social care providers
• check, where practical, that a named clinician or team has taken over responsibility when your role in providing a patient’s care has ended.
• This may be particularly important for patients with impaired capacity or who are vulnerable for other reasons. “If you have undertaken duties outside of your normal duties during the period of industrial action, you must be mindful of your duties with regard to ensuring continuity and good communication if handing back care to another doctor.”
  

If you have are facing a workplace situation that you need support with, phone HCSA on 01256 770999 for help or email conspec@hcsa.com.

NHS Employers have now published guidance here