Imposing changes to contract terms and the NHS junior doctors

2016-09-02 chris posted:

Following 10 days of intensive talks in May 2016 to seek to resolve the long running junior doctors’ dispute, an Acas statement setting out the terms of an agreement was presented to the Government, NHS employers, and the BMA on 18th May 2016. This was agreed by all parties to resolving the current dispute subject to securing the support of BMA junior doctors in a referendum.

During the referendum, junior doctors rejected the contract by 58%, prompting the resignation of the BMA junior doctor leader Johann Malawana and causing ministers to announce once again that they would impose the new terms and conditions.

The recently announced strikes (a 5 day strike for each month until December 2016) come after junior doctors have already taken part in six strikes this year, including two all-out stoppages.

Under the new imposed contract, junior doctors will see their normal working hours extended from 7pm on weekdays to 10pm, and will include Saturdays from 7am to 5pm for the first time.

Basic pay will rise between 10-11% on average, with supplements paid for frequent weekend working. Those who work nights will attract an enhanced rate of 37% above normal time. This replaces the old system whereby weekend or night work can attract up to double time.

The Government has decided to impose the new contractual terms on new junior doctors from October 2016, with much of the rest of the workforce to follow by next summer.

What should you be aware of when changing contractual terms?

By seeking to impose new contracts on junior doctors, the Government may be in breach of contract. When an employer wants to make a proposal to change the terms and conditions of employment, employees can either accept or reject it. If junior doctors feel that their employer has acted in breach of contract by unilaterally changing the terms and conditions of their existing contracts then they can resign and claim constructive unfair dismissal. The risk for junior doctors doing this is that at a later date an Employment Tribunal might rule that the Government’s proposal was reasonable and, accordingly, the doctors were not unfairly constructively dismissed.

If the junior doctors carry on working but do not agree to the changes then one option open to the Government might be to dismiss the junior doctors on the old contract, giving the required level of notice, and then re-engage on the new contract immediately on termination of the old contract. However, this would mean that the Government has dismissed the junior doctors and if the junior doctors chose not to accept the new contract then an Employment Tribunal will again have to rule on whether the dismissal was fair.

Moreover, if any employees do not agree to the changes and are dismissed, the duty of collective consultation will arise prior to dismissal. A failure to engage in collective consultation could result in a protective award of up to 90 days gross pay per employee being made against the employer if changes are being made to more than 20 employee’s contracts.

The position with public sector workers is slightly different from the private sector, but broadly speaking the same principles apply. If you are unsure about your legal rights when it comes to changes to contract terms, we will be happy to advise you on your position. Just call us on 01225 632240 or email us at info@renneyandco.com.

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