UK: Can The Government Force Junior Doctors To Accept Their Contracts?

Last Updated: 22 February 2016
Article by Rupa Mooker

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 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


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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.