The first ever all out strike by junior doctors raises a host of complex issues that go well beyond the reach of labour law. There are however two key areas where collective wisdom from previous industrial disputes can offer some help.
There is no dispute about the basic rule that workers who withhold their labour do not need to be paid. However, it is not so easy to work out how much to withhold where there is industrial action short of a strike, or the days lost to industrial action are discontinuous.
For the first day of industrial action, currently planned for 1 December, junior doctors will be providing emergency cover only. However NHS employers are entitled to notify them that partial performance of their contracts is not acceptable, and if they do take part in the day of action they will not be paid, even if they do some work. As an alternative, it is also likely to be lawful to withhold a portion of their salary for the day of action which properly reflects the employer’s assessment of the value of the work which has not been performed. However given the different range of duties which are likely to be performed by junior doctors during a typical day, it may be difficult to come up with a workable formula that would apply to all cases.
For days where there is an all-out strike it is quite clear that those striking will not be paid, so employers do not need to make an advance decision about whether to pay or not. However there is still an issue about how a day’s pay is calculated for salaried staff. There are no hard and fast rules but a deduction which reflects the pay which would be lost by taking a day’s unpaid leave is likely to be lawful. This is likely to reflect the annual salary divided by the number of working days in the year, though the calculation of the annual salary for these purposes may not be straightforward, as it will depend on the doctor’s shift patterns which may vary from month to month.
While it is illegal to bring in staff via an employment agency to provide cover for striking workers, the same rules do not apply to bank staff, or to redeploying other employees who are not on strike. It is likely therefore that many NHS employers will wish to lean heavily on consultants to provide emergency cover.
Consultants will be aware that quite apart from their professional obligations, they have a contractual duty to provide reasonable co-operation during their working day, and this will include doing work normally done by a junior doctor to ensure patient safety. However as well as different views on clinical risk, there may well be different perspectives about how many additional duties consultants can be expected to perform without putting the employer in breach of contract.
The legal touchstone is likely to be the duty implied into all contracts of employment, which precludes either party from acting in a way which undermines the relationship of “trust and confidence” which the courts regard as essential to the viability of an employment relationship. Avoiding a breakdown in this precious commodity while coping with an all-out strike is likely to require ingenuity and imagination on both sides.