Junior Doctors Industrial Action (JDIA) – October 2023

Advice Note for Junior Doctors

Junior doctors in England are planning to take further Industrial Action commencing 2 October 2023.

The proposed action will be taking place between 7:00 AM on 2 October 2023 to 6:59 AM on 5 October 2023.

The form of Industrial Action proposed varies from union to union.

BMA – BMA junior doctors will take industrial action in the form of 72 hours of ‘Christmas Day’ levels of care as part of joint action with Consultants.

HCSA – HCSA junior doctors will take action in the form of a 72-hour full walkout.

MDS has produced this guidance to advise junior doctors on the general principles of Industrial Action. We also strongly recommend that you read the relevant guidance on the GMC, BMA and HCSA 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 may also wish to consider informing your employer of your intention to take Industrial Action to ensure appropriate planning for patient safety. However, you are not legally obliged to give notice of your Industrial Action.

On the action dates

● If you wish to take part in the Industrial Action you will not report for work on the 2, 3 or 4 October 2023

● If on 2 October 2023, you are working on 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 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.

The spirit of taking the Christmas Day cover form of industrial action is to ensure the lowest safe level of staffing that is found at any point in the year. The level of staffing normally mirrors that which would be expected on Christmas Day – both in terms of the number of junior doctors, and the places and departments they will be working in. This generally involves on-call teams clerking and covering wards, as well as staff in A&E attending as usual. If Christmas Day does not represent minimum staffing and your staffing levels are lower on a weekend for example, the lower staffing day will be your reference point for safe minimum staffing.

If you are unsure whether you are required to attend the BMA has provided a helpful flow chart and further detailed guidance which can be found here. If you are still unsure after reading this guidance, please get in touch with us and we will be more than happy to advise you further on your position.

After the action dates

● After the action dates have taken place, please return to work as normal.

● If you suffer any detriment for example, dismissal as a result of taking 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 junior doctor with an NHS employer. However, please note that you will not be supported by the BMA or HSCA when taking Industrial Action unless you are a member. If you are an MDS member, we will offer you 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 or HCSA but do belong to another trade union and would like to join the Industrial Action planned, am I able to do so?

Junior doctors who are members of a different trade union (for example Unite or Unison) should check with their Union as to 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.

3. Am I able to strike if I am a locum?

The rules of industrial action apply to locum junior doctors in the same way they do to substantive junior doctors. Thus, entitlement to strike is dependent on whether or not you have an NHS employer.

You will be entitled to strike if you are employed by an NHS Trust, which is the case for the overwhelming majority of locum doctors. You can still be employed by a Trust even if you use an agency to book shifts. Locums employed by Trusts are regarded as self-employed and the usual legal position regarding self-employed persons applies. That is, you are free to accept or reject offers of work as you see fit, however, you should provide notice of your intent and cancel your shift in writing.

On the contrary, if you are directly employed by an agency and have been rostered to work on the day(s) of the Industrial Action, then you should attend for work as usual to avoid breaching your contract. If you wish to take part in the JDIA you should consult with your employment contract to ensure that you are complying with any stipulated notice period and you must obtain confirmation in writing from your agency that you are not obliged to be present for pre-agreed shifts.

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 Industrial Action if you wish.

What are the consequences of taking part?

5. 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.

6. If I do not attend for work on the proposed Industrial Action dates, will I have 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 which you do not attend work when you are meant to do so.

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.

It is unlikely that your pay will 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 the NHS Employers FAQs here.

Other questions

7. 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.

8. 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. If you do not wish to take part in the JDIA you should report to work as normal.

9. 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. You may wish to do so to ensure appropriate planning for patient care and safety.

10. If I am on annual leave or study leave on the days of Industrial Action, will I be paid?

If you have booked annual leave or study leave on the days of Industrial Action, and continue with these arrangements e.g. attending a booked course, you will be paid as normal. However, if you wish to participate in the JDIA you must cancel or rearrange your study leave in order for our above advice on JDIA to apply.

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.

Junior Doctors Industrial Action (JDIA) – October 2023

Advice Note for Senior Doctors

Junior doctors in England are planning to take further Industrial Action commencing 2 October 2023.

The proposed action will be taking place between 7:00 AM on 2 October 2023 to 6:59 AM on 5 October 2023.

The form of Industrial Action proposed varies from union to union.

BMA – BMA junior doctors will take industrial action in the form of 72 hours of ‘Christmas Day’ levels of care as part of joint action with Consultants.

HCSA – HCSA junior doctors will take action in the form of a 72-hour full walkout.

MDS has produced this guidance to advise senior doctors on the general principles of Industrial Action. We also strongly recommend that you read the relevant guidance on the GMC, BMA and HCSA websites

Before the JDIA dates

Large numbers of junior doctors are expected to be on strike, and it should be assumed that there will be none available to work. It is the direct responsibility of the employer to make arrangements for covering these gaps and ensuring safe patient care. It is expected that employers will plan for the action days in advance, and they may

invite you to assist with the planning to maintain safe services for patients.

You should assist your employers and advise them on what patient activities can safely take place in the duration of the JDIA. The discussion should be based around what, if any, planned care can be safely undertaken – not only for patients requiring planned care but also for in and emergency patients.

On the JDIA dates

Your obligations on the action dates will differ depending on if you are scheduled to work on these dates as part of your job plan or if you are not scheduled to work for part or totality of the JDIA.

If you are scheduled to work as part of your job plan on the days of the JDIA

You should report to work as usual, but as you may not have the support of junior colleagues you may be asked to undertake some of their duties. This does not mean you are ‘acting down’ but working at an appropriate level in response to unusual circumstances.

It is within the terms of contract that specialist grade and specialty doctors can be required to cover the duties of junior doctors. Organisations can also require consultants to, in turn, cover the duties of associate specialists and where the duties are incidental to those already scheduled in the job plan, duties that would normally be carried out by junior doctors.

We would advise you to cooperate with reasonable requests of your employer as much as possible on the action dates in accordance with your “duty of fidelity and good faith”. Any unreasonable refusals to undertake work that is normally carried out by junior doctors could result in your employer taking disciplinary action.

There is no firm definition of what a reasonable request is or what would be considered as an unreasonable refusal. As a general rule doctors are expected to cooperate with reasonable requests to deputise for colleagues who are absent, “where it is safe and practicable to do so”.

Covering for absent junior doctor colleagues may involve tasks that you have not had to perform for many years, and you may have concerns about your ability to carry out certain tasks involved in ward work. You must not perform tasks that are outside the sphere of your competency and training.

A consultant has a professional obligation to act within their sphere of competence. As such, you need to be clear with your employer if you do not feel that you can safely and competently perform the work required and that doing so may expose you to enhanced risk of medico-legal consequences.

Clinical and patient safety should be paramount and if you believe that patient safety may be at risk and planned care cannot go ahead, you should raise this immediately with the hospital management and the Medical Director.

Where you provide cover under your terms and conditions, as part of your job plan and where already scheduled to work, additional remuneration will not be given, and you will be paid in accordance with your usual pay.

If you are not scheduled to work but asked to provide cover for the JDIA dates

If you are being asked to provide cover in addition to your job-planned duties for your absent junior doctor colleagues this will be considered ‘acting down’ and does not form part of your contractual terms and conditions.

The Trust should reach an agreement with you regarding any arrangements to cover junior doctor colleagues and this may include an agreed rate of remuneration or Time Off in Lieu (TOIL) or a combination of both. These arrangements would usually be made in consultation with the LNC. MDS cannot advise you on the quantum of remuneration as that would be locally negotiated, but we will offer you advice and support if there is a dispute arising from agreed arrangements.

As stated above ‘acting down’ may involve tasks that you have not had to perform for many years, and you may have concerns about your ability to carry out certain tasks involved in ward work. You must not perform tasks that are outside the sphere of your competency and training.

Your employer should ensure that recommendations for rest are met, and you should be entitled to 11 hours of uninterrupted rest in a 24-hour work period if you are working in a full shift pattern. Furthermore, you are entitled to a break if the working day is longer than 6 hours.

After the JDIA dates

You must ensure that all continuity of care recommendations are complied with, and that the GMC’s Good Medical Practice guidelines are adhered to. Documentation must be completed, and patient care safely handed over.

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.