HCSA has produced the following guidance for resident doctor members on how planned BMA strikes will affect your work.

You may also have seen advice from other organisations. Legal opinions differ and there are various interpretations of contract and employment law. 

If you are in any doubt about the specific circumstances you face, 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 should not perform duties beyond your area of competency or outside the scope of your contract
• You do not need to work additional hours on strike days
• Use the exception reporting system to record any changes to your usual work
• Contact HCSA immediately for any assistance.

Why are HCSA resident doctor members not striking?

In June HCSA consulted with all grades of doctors in England on both strike and action short of a strike.

While a resounding 70.8 percent of resident doctors who did vote indicated support for strike action on pay, strict trade union legislation dictates that this is not enough.

In assessing whether to move to a formal ballot the National Executive Committee also had to consider the legal thresholds put in place by anti-union laws.

Health-sector unions are required to have both a minimum of 50 percent of all relevant members vote as well as more than 40 percent of all relevant members vote Yes.

The National Executive Committee decided that given these thresholds the level of backing for strike action among HCSA resident doctors was insufficient to support moving to a formal postal ballot. This means that HCSA does not have a legal mandate to call resident doctor members to strike.

Should I attend work on BMA resident doctor strike days?

HCSA does not have a resident doctor 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 who is also a member of a striking union. Members in this position don't need to leave HCSA in order to strike and will still receive all the other benefits of HCSA membership.

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 pressured 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 resident doctor 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 engaged in discussions regarding which services can and cannot operate safely on strike days. HCSA is of the view that employers should minimise risk by planning as if there will be participation in the strike from all resident doctors. 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: “You may be faced with challenging situations during strike action, even if you aren’t participating directly. You will need to respond responsibly and reasonably to the situation you face, using your professional judgement to assess any risks and the options available to deliver the best possible care for people in the circumstances.”

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.

The resident doctor contract 2016 states that “Doctors will be expected to be flexible and to cooperate with reasonable requests to cover for their colleagues’ absences where the doctor is competent to do so, and where it is safe and practicable for the doctor 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 covering 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.

NHS Employers Capsticks guidance note states: “Where organisations are planning to move workers or engage temporary workers to deal with staff shortages one important point to consider is the skill set of the individual to ensure that they are capable of performing the role in question and that they are undertaking tasks within the scope of their contract of employment (unless staff agree to a short term variation to terms of employment for the purposes of covering staff shortages during industrial action).”

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.

However:

• Any requests made must be within your competence.
• You are under no obligation to work additional hours.
• 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.

Should I work extra-contractual hours during a resident doctor 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.

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.We would also encourage you to utilise the exception reporting system where appropriate for any changes to your usual work.
• If you have undertaken duties outside of your normal duties during the period of industrial action, you must be mindful of the need to ensure continuity and good communication if handing back care to another doctor.

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

Read the GMC on industrial action
Read the NHS Employers guidance to trusts