New contracts: not what the junior doctor ordered

How will junior doctors‘ resistance to a new contract will affect HR in the NHS?

Last month major doctors’ union the British Medical Association (BMA) called off a 48-hour walkout, planned for 26 January, by NHS junior doctors in England. It would have been the second of three strikes planned during January and February after negotiations over the government’s proposed new junior doctor contract broke down.

The first strike, a 24-hour walkout with emergency only care, was the first industrial action by junior doctors since 1975. It saw a reported 40,000 staff attend more than 100 picket lines, causing disruption across many Trusts, with thousands of operations and treatments postponed.

Announcing the suspension of the second planned strike, BMA junior doctor committee chair Johann Malawana stated: “Differences still exist between the BMA and the government on key areas, including the protection of patient safety and doctors’ working lives, and the recognition of unsocial hours.”

He said that “significant, concrete progress” was needed to avert the first ever full-scale walkout in the NHS with no emergency care, which at the took place on 10 February, despite last-minute talks on 9 February between the BMA, NHS Employers and the Department of Health.

Making up around a third of England’s medical workforce, the nation’s circa-55,000 junior doctors, around 37,000 of whom voted last November in favour of industrial action, includes everyone from new graduates to those who’ve spent up to a decade in the job. According to the government, current junior doctor contracts are outdated and unfair. So in 2012 ministers announced plans to negotiate a new one. Talks began in 2013 but broke down in October 2014 amid disagreements over doctors’ welfare and patient safety.

This coincided with a separate row over Jeremy Hunt’s decision to ignore the Pay Review Body’s recommendation of a 1% increase for all NHS staff. The move sparked weeks of industrial action in which members of nine unions staged walkouts across England. Talks over the junior doctors contract finally resumed again last December.

Complex arguments

The row is a complex one. Of the more than 20 practitioners HR magazine invited to comment, none agreed. Those opposed to the contract argue that despite including an 11% pay rise it will see normal working hours extended to include Saturdays and up to 10pm every day except Sunday, meaning extra pay for unsocial hours – which can be very lucrative – will no longer apply at those times. Salaries will be linked to level of responsibility rather than time in post, while annual pay rises will be scrapped in favour of recognition for training and development.

The BMA argues that medics will be worse off, career progression will be undermined and long working hours will be compounded, putting patients at risk. The government, meanwhile, is dependent on the new contract to achieve its ‘seven-day NHS’ election pledge and maintains that average earnings will remain the same and safeguards will prevent doctors from working too many hours.

Extra pressure

So with the government, unions and junior doctors at an impasse, what pressure are the strikes placing on the teams staffing an already beleaguered health service?

“Organisations will most likely be thinking about the impact on workforce morale, because if some are out on strike there will be a cascade effect,” says Julie Towers, managing director of public sector recruiter Penna Recruitment Solutions.

“How do you make sure you don’t get poorer performance, increased sick leave and added work pressure on others, and how do you keep an engaged team around a common goal when there’s a divide in the workforce?” she asks.

Welfare of employees should be front of mind for those responsible for HR in the health service, according to Towers. Good HRDs will have invested in their staff “way back” to ensure that at a time like this they feel supported and motivated to come to work “and go the extra mile”.

Towers warns that an ongoing dispute such as this could be costly to the health service in terms of recruitment and retention. “Because this is being played out in the national press, attracting people to the role may get more challenging,” she points out. “The job could become so demeaned or branded so poorly that we get a talent pipeline gap.”

Fragmentation

The junior doctor row began escalating last summer after Jeremy Hunt said that should an agreement not be reached between the two sides, the government would impose the new contract unilaterally in August this year.

Towers says this would inevitably cause “fragmentation among the professions”. “People make choices when they’re pushed against a wall and HRDs are going to have issues around retention. They’ll need to look at what non-financial benefits and local discretion they can use to remain attractive,” she adds.

She points out, however, that: “The one advantage the NHS has is that its staff are public service driven and get up in the morning to save lives, so some people will get past the contract.”

This is a view shared to some extent by Andrew Davidson, partner at national health and social care law firm Hempsons. He says he is sceptical that imposing the contract would have much, if any, impact on recruitment and retention.

“If you’ve committed to being a junior doctor and as long as the terms are broadly the same, I don’t think it’ll have a massive impact,” he says. “Once this is implemented it’s pretty simple; people will either take it or leave it. There’s not much else they can do and I think we are unlikely to see any sort of legal challenges on an individual basis against it.”

A long process

Chris Holme, employment partner at law firm Clyde & Co, believes that if the contract is imposed unilaterally the BMA is unlikely to take it lying down. “Implementing such a contract would need to be a long process; they can’t just flick a switch and change it unilaterally from one day to the next, it is far too complicated,” he states. “I would certainly think there will be a risk of further industrial action.”

Now is the time, says Holme, for employers to learn lessons from the last few years, strengthen relationships with unions, and keep lines of communication open and transparent.

While the disagreement simmers on, it risks dividing not only the NHS, but also the nation. In an Ipsos Mori poll conducted this month 49% of the public say they ‘strongly support’ the junior doctors’ strike, and 64% blame the government more than doctors for the dispute lasting this long.

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