UK: NHS Strike Action

Last Updated: 31 July 2012
Article by Sarah John

Doctors staged their first industrial action since 1975 over the ongoing debate on pensions. Sarah John of Clyde & Co's employment team considers steps Trusts could take in the event of further action.

On Thursday, 21 June 2012, British Medical Association (BMA) members across the UK commenced strike action for a 24-hour period in a dispute over pensions. Under the terms of the strike, all participating doctors were told to attend their place of work so that they were available in the event they were needed to provide urgent and or emergency care. However, they were not to undertake their normal day to day duties.

In the event, the disruption to services feared by many did not materialise; NHS London, for example, reported to the BBC that 11% of non-urgent operations were cancelled and 6% of outpatient appointments were required to be rearranged. Whether the scale of the action met the BMA's anticipation and whether it had any practical effect on the ongoing pension debate, are moot points. It remains to be seen whether the BMA will propose further industrial action.

What is strike action?

Strike action is 'a concerted stoppage of work by workers with the purpose of disrupting the employer's business'. It is the most serious form of industrial action open to employees, and can cause considerable disruption in the workplace. This is in contrast to 'action short of strike', which can take a number of forms, including an overtime ban, 'go-slow', working to rule and withdrawal of cooperation.

What can an employer do?

So, what are the options open to employers when faced with a striking workforce, and what risks should an employer be aware of when attempting to deal with strike action?

Withholding pay

The core principle in an employment contract is that an employee is paid for work done. Where an employee refuses to work during their contracted hours he or she is not therefore entitled to be paid, and in most cases will be in breach of his or her employment contract.

An employer is therefore entitled to withhold an employee's pay for the time during which they did not work. If an employee is paid on an hourly basis, and his or her employment contract specifies normal working hours, deductions should be calculated by reference to the hours lost. Where employees are salaried, unless stated differently in the employee's contract, salary is deemed to accrue from day to day, and this means calendar day, not working day, and salary should be deducted on this basis.

In this instance, where doctors attended their workplace but did not carry out work unless it was urgent or emergency care, determining what an employee is entitled to be paid is not a straightforward process. Furthermore, NHS employees are employed on a range of atypical arrangements including flexible hours of work and rota arrangements, making it harder to establish whether an employee has been involved in strike action and for what period of time.

Care should be taken to ensure consistency of treatment of full-time and part-time staff when deciding how to calculate the level of pay to be withheld. It is good practice to seek to agree an 'Interruption of Work During Periods of Industrial Action' Policy Statement for dealing with these issues to avoid disputes arising when strike action commences.


There is a certain amount of protection afforded to employees who are partaking in strike action. However, the rules relating to whether a dismissal that occurs while an employee is taking industrial action is 'automatically unfair' are complex and should be reviewed on a case by case basis.

The legal position of employees will depend on whether the action they are taking part in is:

  • Unofficial – not authorised or endorsed by a union
  • Official – authorised or endorsed by a union but not protected
  • Protected – official action which is taken in response to a valid trade dispute and following a properly conducted ballot and proper notification of the employer and the participating employees

Where strike action constitutes 'protected industrial action' as in the case of the recent BMA action, employees would be entitled to take industrial action for a minimum of 12 weeks without being dismissed.

Employees do not however enjoy the same protection against unfair dismissal if the statutory notification requirements have not been complied with.

The limited nature of the action at this stage may not be sufficient for Trusts to consider whether or not to take steps against those involved in the dispute. In the event of further action, however, Trusts may be required to respond.

Practice points

  • Action was aimed at disrupting non-urgent services; Trusts and the public should be reassured that urgent care would still be provided
  • Trusts should work with affected patients and clinicians to rearrange as soon as practicable cancelled operations and clinics
  • Liability for incidents arising due to insufficient staff on duty during the period of the action is unlikely to be avoided; Trusts still retain their duty to provide reasonable care to patients
  • Careful legal advice would be recommended in the event any Trust seeks to take steps against doctors involved in protected industrial action
  • Consider introducing a clear policy statement regarding pay if further action is likely to occur

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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