Consultants Industrial Action (CIA) – October 2023
Advice Note for Consultants
Consultants in England are planning to take further Industrial Action in the form of 72 hours of joint action with Junior Doctors commencing 2 October 2023.
Both groups will provide ‘Christmas Day’ levels of staffing only.
The proposed action will be taking place between 7:00 AM on 2 October 2023 to 6:59 AM on 5 October 2023.
MDS has produced this guidance to advise consultants on the general principles of Industrial Action. We also strongly recommend that you read the relevant guidance on the GMC and BMA websites.
Before the action dates
● In advance of the action dates please ensure you are eligible to take part in the Industrial Action. If you are not eligible and take part regardless, you will not be protected against any detriments which may be suffered as a result of taking part.
● You are not legally required to inform your employer of your intention to take Industrial Action. However, the BMA is encouraging consultants to discuss their plans with their colleagues and management to ensure appropriate planning for patient safety.
On the action dates
● If you wish to take part in the Industrial Action you will not report for work on 2, 3 or 4 October 2023.
● If on 2 October 2023, you are working a shift that is due to finish after the commencement of the strike at 7:00 AM you must not leave your shift partway. You should finish your shift as normal and ensure appropriate handover of patient care in accordance with Good Medical Practice.
● If on 5 October 2023, you are due to commence your shift before 7:00 AM you should not attend. If your shift is due to commence after 7:00 AM you should attend as normal.
‘Emergency Care Only’ or ‘Christmas Day’ levels of care
The Industrial Action called for by the BMA is that of ‘Christmas Day’ levels of care, otherwise known as ‘Emergency Care Only’. This means that emergency care will continue to be provided but elective or non-emergency work will be cancelled.
On the action dates, you will be expected to provide the same level of service that you would on Christmas Day thus most consultants will be providing an on-call only service. You should remain contactable in case of emergency during the on-call period.
In a department where all consultants are striking, the BMA suggests that the consultant who is scheduled to be on-call on the day would typically be the one providing the emergency cover. However, if there are consultants in a department who are not striking, and the person who is nominally on-call wishes to strike, arrangements should be made by the employer to facilitate that individual’s legal right to strike and ensure emergency cover is provided by someone else.
After the action dates
● After the action dates, please return to work as normal.
● If you suffer any detriment, for example, dismissal as a result of taking part in the Industrial Action, please inform us as soon as possible and we will be able to support and
advise you accordingly.
FAQs:
Can I take part?
1. If I am not a member of a trade union but would like to join the Industrial Action planned, am I able to do so?
Yes, you still have the same entitlement to participate in legal, official Industrial Action as union members if you are a consultant with an NHS employer. However, please note that you will not be supported by the BMA when taking Industrial Action unless you are a member. If you are an MDS member, we will offer you the relevant advice and support. The BMA has provided some more detailed guidance on who is eligible to take part here.
If you are still unsure as to whether you can take part in the Industrial Action after reading this guidance, then please get in touch with us and we can advise you further regarding your eligibility.
2. If I am not a member of the BMA but do belong to another trade union and would like to join the Industrial Action planned, am I able to do so?
Consultants who are members of a different trade union (for example Unite or Unison) should check whether or not their union has balloted and if it supports the Industrial Action. If it has not, or does not, they should think carefully about taking part in Industrial Action as this would be considered unofficial action.
Please note that unlike the Junior Doctors Industrial Action, the HCSA have not balloted for consultants to strike, and so HCSA members are not entitled to strike, unless they are also a member of the BMA.
3. I am a locum consultant, am I able to strike?
Locum consultants can take part in the forthcoming Industrial Action if they have an NHS employer. However, if you do not have an NHS employer for example, if you are employed via a locum agency then you will not be able to strike.
If you are unsure as to whether you have an NHS employer or not, please get in touch with our team of advisors who will be able to review your employment contract and advise you accordingly.
4. Am I able to strike if I am on maternity leave?
You cannot strike whilst on maternity leave. This is because you would not be expected to be on a shift on the days of Industrial Action. However, you can attend protests and demonstrations in support of the Industrial Action if you wish.
5. I am due to be on-call on one or more of the strike dates, can I still take part?
The Industrial Action called for by the BMA is that of ‘Christmas Day’ levels of care, otherwise known as ‘Emergency Care Only’. This means that emergency care will continue to be provided but elective or non-emergency work will be cancelled. As such, most consultants will be providing an on-call only service.
If you are due to be on-call on one of the strike dates, your ability to participate in the Industrial Action will depend on local arrangements.
The BMA advises that in a department where all consultants are striking, the consultant who is scheduled to be on-call on the day would typically be the one providing the emergency cover. Thus, in such circumstances, you should remain contactable in case of emergency during the on-call period.
However, if there are consultants in a department who are not striking, and the consultant scheduled to be on-call wishes to strike, they have a legal right to do so. Therefore, it will be up to your employer to determine
how emergency cover will be provided during the strike dates, and we would encourage you to have early discussions with your colleagues and management about this as to how this can be facilitated.
What are the consequences of taking part?
6. Are any of my terms and conditions affected if I strike?
Taking part in Industrial Action will not break your continuity of employment, however each day will be deducted from your continuous service which may impact on your pension and annual leave entitlement.
7. If I do not attend for work on the proposed Industrial Action dates, will I have my pay deducted and if so when will this take effect?
If you take part in the Industrial Action, you will lose any pay entitlement for the days that you were due to be working but do not attend work.
Your employer should have been provided with advice from NHS Employers on the appropriate pay deduction calculation. You should expect to lose the equivalent of 1/365th of your annual salary for each day that you strike or an hourly calculation rate that must be no greater than the 1/365th figure.
It is unlikely that your pay would be deducted in the same month as you took the relevant industrial action. This is because it takes some time to record the activity and for the necessary arrangements on the system to be made by payroll. It is important to check your pay slip each month to ensure that this deduction has been applied correctly.
Further guidance can be found on the BMA website here and in the NHS Employers FAQs here.
Other questions
8. If I am sick on a day of Industrial Action, will I be paid and how should I report my sickness?
If you feel unwell on the days of Industrial Action you should report your absence in line with the normal reporting arrangements unless other guidance has been provided. Please note that given the circumstances you may be required to submit a Fit Note. Your entitlement to statutory sick pay remains the same despite the Industrial Action.
9. I am a member of the BMA, but I did/did not vote to strike in the ballot. Can I still come into work on the strike days?
Whether you voted yes or no in the ballot, or did not vote at all, it is entirely your choice whether you want to take part in the Industrial Action or not as long as you are eligible to strike. If you do not wish to take part in the Industrial Action, then you should report to work as normal.
10. Is my employer allowed to ask me if I am in a union and if I intend to strike?
Yes, your line manager is permitted to ask if you are part of a trade union and/or if you intend to take Industrial Action. However, you are not legally obliged to inform your employer that you are participating. The BMA is encouraging consultants to discuss their plans with colleagues and management to facilitate service planning and minimise disruption to patients.
If you are asked whether you took part in the Industrial Action upon your return to work, then you should respond truthfully.
11. If I am on annual leave or study leave on the days of Industrial Action, will I be paid?
If you are on annual leave on the days of Industrial Action, you are not entitled to strike as you would not be expected to be on shift on those dates. Consequently, your employer must not deduct your pay even if you partake in picketing.
If you have booked study leave on the days of Industrial Action and continue with these arrangements, for example, attending a booked course, you will be paid as normal. However, if you wish to participate in the Industrial Action you must cancel or rearrange your study leave in order for our above advice to apply.
12. What is the GMC’s view on Industrial Action and will there be any consequences for taking part?
The GMC recognises doctors’ legal entitlement to take part in Industrial Action. However, the GMC reiterates that Good Medical Practice is not removed or modified by taking Industrial Action. Consultants should continue to uphold the principles of Good Medical Practice when preparing for and participating in Industrial Action. You should ensure that there are appropriate handover arrangements in place as with any other public holiday.
13. If I am striking, can I undertake private practice?
The key consideration regarding the issue of undertaking private practice work during Industrial Action is whether consultants are taking part in Industrial Action and withdrawing their service from the NHS, and then planning to undertake private practice instead, or if they will be undertaking private practice during periods where they are not scheduled to work for their NHS employer and this coincides with the period of Industrial Action.
In the latter scenario, where a consultant is not scheduled to work for the NHS for all or part of a strike day, and is scheduled to undertake private practice, we consider that you can continue with this work. However, you may wish to consider whether this would undermine the collective Industrial Action taking place.
On the contrary, there are a number of concerns regarding consultants who wish to withdraw their labour from the NHS as part of the Industrial Action and pick up private work whilst striking. Whilst this is not expressly prohibited by the legislation governing Industrial Action, it is
likely to be contrary to your employment contract and/or local policies and so we would advise consultants to think carefully about this before undertaking private work in case it amounts to misconduct. It is our view that the GMC would likely condemn this behaviour and consider it at odds with Good Medical Practice paragraphs 65 and 77.
Further guidance can be found in the NHS Employers FAQs here.
14. If I am striking, can I undertake locum work elsewhere?
As stated above in relation to private practice, there are a number of concerns regarding consultants who wish to withdraw their labour from the NHS as part of the Industrial Action and pick up private or locum work instead. It is likely that your employment contract will expressly prohibit you from undertaking work for an alternative employer during your contractual working hours, and so it is our view that it would not be appropriate for you to undertake additional shifts as a locum doctor elsewhere during the hours that you are striking.
However, the above-mentioned legislation does not prohibit a consultant who has withdrawn their labour during their rostered shift from undertaking locum work at other times where they have not been rostered to work. For example, a doctor could locum 5 – 9pm at their own Trust or elsewhere despite taking part in the industrial action between 9am – 5pm (contractual hours). Therefore, it is open to you to undertake work elsewhere as a locum doctor, as long as this is not during the same hours that you were striking.
Further guidance can be found in the NHS Employers FAQs here.
If the above guidance does not answer your question, please do not hesitate to contact us on 0300 30 32 442 or [email protected] and we will be more than happy to assist you further.