Employment rights and industrial action
As your union, we can support BMA members who may run into difficulties due to taking action. If you encounter any such difficulties, or would like further advice on your rights when taking industrial action, you should contact us as soon as possible.
We are not able to support any non-members who decide to take industrial action. We would urge you and your colleagues to join the BMA in advance of any industrial action.
The law and industrial action
The law recognises the importance and legitimacy of trade unions, collective bargaining, and industrial action. The right to freedom of assembly and association, which includes trade union membership, is a fundamental human right enshrined in the Human Rights Act 1998. While taking part in industrial action is not entirely without risk, trade union law includes powerful employment protections for those taking part.
Protections against unfair dismissal
Industrial action typically involves breaching your employment contract. Striking, or refusing to work, when you are required under your contract to work, is a breach of your contract. This is why employers may be entitled to make deductions from pay while you are striking.
However, trade union law gives those taking industrial action certain employment protections. The most powerful protection applies where an employer dismisses a worker for taking part in industrial action which is lawfully organised by the union.
Any dismissal for taking part in industrial action which is lawfully organised by the trade union will be automatically unfair if it takes place within the period of twelve weeks beginning with the first day on which you take such industrial action and may be unfair if it takes place later. The Employment Tribunal has the power to reinstate you and/or award you compensation if you are unfairly dismissed for taking industrial action.
Based on the BMA’s experience of industrial action, we think it is very unlikely that doctors would face dismissal by their employers. The BMA would provide any support necessary for members who were subject to threats of dismissal.
What to tell your employer
You are not legally required to respond to questions about whether or not you are taking industrial action. However, we have been clear that this will be a Christmas Day level of service and have given advance notice to ensure that the most urgent patients can be scheduled for care on alternative dates. To facilitate service planning, and minimise disruption to patients, we would encourage you to discuss your plans with colleagues so that appropriate arrangements can be made.
If you are asked whether you took part in industrial action after you return to work then you should respond truthfully.
What the GMC says
The GMC emphasises your legal entitlement to take industrial action. It is important you are clear on the GMC guidance on the duties of a doctor. This guidance is not removed or modified by taking industrial action. However, the model of action we are taking is Christmas Day cover and therefore all emergency services will remain in place and there will be appropriate handover arrangements as on any public holiday.
The GMC acknowledges that during industrial action doctors’ employers will have a vital role in planning and preparing for how patients will be cared for. See 'Good Medical Practice' paragraph 14.