Doctor, Doctor, can I have a second opinion? Of course – come back tomorrow!"

Most of us like a good "Doctor, Doctor" joke but the ongoing row between Jeremy Hunt and the medical profession is making major news headlines and is certainly no joke for those involved. It's a good time to consider and reflect on the employment law implications of what is happening.

The Health Secretary has told parliament that he will, following two months of failed negotiations, unilaterally impose revised terms and conditions on junior doctors (in England only) in August this year. The revised terms include making Saturdays a part of doctors' core working hours. The British Medical Association (BMA) has vowed to continue fighting the contract and has said it will "consider all options open" to it. Add to that the government's response to an indication from some hospital trusts which may not force the contracts on the doctors – namely, "you might lose funding for training if you don't impose these contracts" – and we are left with a complex set of issues which isn't going to be easily resolved.

Can the government force the doctors to accept the contracts?

The first thing to note is that none of the foundation trust hospitals in England are legally obliged to force junior doctors to accept the contract. More generally, a contract of employment can only be amended in accordance with its terms or with the express agreement of the parties. If agreement is not reached (as here) and there is no contractual right to make changes to terms and conditions, an employer can either:

  • Unilaterally impose the change and use the employee's conduct to establish implied agreement to the new terms; or
  • Terminate the existing contract and offer continued employment on the new terms.

Like it or lump it?

If the changes to a contract are unilaterally imposed without obtaining express or implied consent (as the plan is here) there is a breach of contract. The doctors now have a few options:-

  1. Comply with the new terms but work "under protest" and claim for breach of contract or potentially unlawful deductions from wages. This would allow the doctors to have a reasonable period to "try out" the new arrangements before deciding if they wish to object. They would still have ongoing claims.
  2. If the change is sufficiently fundamental and goes to the root of the contract (which the doctors may argue), they can say they have been forced to resign and bring a claim for constructive dismissal. Alternatively, if they can show that the change imposed is substantial (for example, the terms are so radically different that the original contract is effectively withdrawn) a Tribunal could hold that the doctors have been dismissed – meaning they could raise unfair dismissal claims. Whilst this latter scenario is rare (there really do need to be quite drastic changes) such dismissals could end up triggering collective consultation obligations. This would be bad as one of the most expensive liabilities an employer can face arises from a failure to comply with collective consultation obligations – each affected doctor could end up being paid up to 90 days' actual pay.
  3. Refuse to work under the new terms and continue working under the old terms. This is different to the situation in 1 above where they work under the new terms, but clearly protest. Mr Hunt will have the problem of managing the 'obstructive' doctor(s) (one way to do this would be to dismiss them but the knock on effect of doing this would be arguably catastrophic).
  4. Accept the change. Given the current position of the BMA, it is unlikely that this last option will be taken up.

The risks of the doctors taking up any of options 1-3 above are fairly high and the potential consequences of them doing so, significant.

"You're sacked....now come back!"

By deciding to unilaterally impose new contracts on the junior doctors Mr Hunt has (for obvious reasons) avoided dismissing them and re-engaging them on new terms. Had he gone down this route, the doctors could have made the following claims:

  • Wrongful dismissal, unless they were given the appropriate period of notice (or a payment in lieu of notice was paid).
  • Unfair dismissal, unless a potentially fair reason for dismissal could be established. Mr Hunt would need to show the government had acted reasonably in taking the decision to dismiss the doctors in light of their failure to agree to the changes.

In addition, if that approach had been used to make the changes, collective consultation would have been required and the consequences of failing to comply with those obligations is expensive.

Further strikes?

In considering "all options", the BMA has raised the possibility of further strikes over the matter of doctor's pay and conditions. The Guardian has reported that the union is in doubt over whether the ballot result it obtained in November still constitutes a legal basis for further action. Could it be time for all involved to seek a "second opinion" after all?

© MacRoberts 2016

Disclaimer

The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.