Consultants' guide to industrial action 2023

On the day of action

Location: England
Audience: Consultants
Updated: Thursday 5 October 2023
Topics: Pay and contracts, Pay

What to do on the day

Advance planning

Employers have been given advance notice of the dates of industrial action. This means there is time for all planned activity to be cancelled in advance and to minimise disruption to patients. In almost all cases, no clinical activity can go ahead in the hospital without the presence or supervision of a consultant, even if that supervision is remote.

Defining ‘emergency care only’

You will only be expected to provide the same level of service that you would on Christmas Day. Care being delivered by junior doctors and allied health professionals that would usually happen with your remote supervision will also need to be cancelled.

On-call responsibilities

In a department where all consultants are striking, we suggest that the consultant who is scheduled to be on-call out of hours on a day of action would typically be the one providing the emergency cover.

If there are consultants in a department who are not striking, and the person who is nominally on-call during the daytime wishes to strike, they have a legal right to do so. In this circumstance, it remains the responsibility of the employer to ensure that emergency cover is in place and they should seek agreement with consultants in the department as to how this is provided.

If this involves additional work or work outside of your job plan, this work is extra contractual and BMA rates ought to be paid.​

Deferring work

While the NHS will need to consider how to catch up with lost capacity, you should not undertake extra work to catch up.

As a consequence of industrial action, some work will not be done and some will be deferred.This might include clinical or administrative work, and is due to the loss of NHS capacity during industrial action.  You are under no obligation to undertake this work on top of your usual activity, and where you do so, you should only agree to deliver it in line with the BMA rate card. The BMA will support doctors who are asked to make up time lost to industrial action.

Emergency attendance

Most consultants will be providing an on-call only service, in the same way as they would on Christmas Day. You should remain contactable in case of emergency during the on-call period.

Non-clinical activities

These do not constitute emergency care and so, if you are taking part in industrial action, you should not undertake them. Examples would be teaching students, training courses, clinical audit and governance, appraisal or educational supervisor meetings, research, management and administration.

Additional NHS responsibilities and external duties

These do not constitute emergency care and so if you are taking part in industrial action you should not undertake them, unless they are being delivered on behalf of another non-NHS employer (e.g. a university employer). Examples include conducting interviews for specialty training recruitment, and so on.

Facilitating medical school exams

We are mindful that the progression of medical students is critical to the health system. To minimise disruption to medical school exams, consultants can still take part in administering these exams. However, to avoid distorting strike participation rates, we would urge you to apply in advance for professional leave on days of action in order to take part in administering these exams. Such activity should, in any case, be undertaken during professional leave.

If you're already at work

You should finish your planned work. As per the GMC's Good Medical Practice, you are responsible for ensuring an effective handover. This is essential as part of a patient's continuity of care.

If you're not scheduled to work

If you are not scheduled to work on a particular day of action, you personally would not need to take industrial action. You cannot have your wages deducted on this day either.

You are fully entitled to join in organised activities on the day, such as picketing, and we would encourage you to do so.

Working for a non-NHS employer

If you are scheduled to deliver work for a non-NHS employer on a day of action, you will still need to attend and deliver that work as normal. Non-NHS employers are not covered by this industrial action. This includes, for example, if you are a consultant clinical academic with a university/HEI (higher education institution) as your primary employer.

If you were scheduled to be working for the NHS on a day of action, you may take industrial action but you must not make arrangements to perform any private practice activity instead of your NHS work.

If you’re not taking industrial action

Some doctors may feel unable or unwilling to participate in the industrial action. The BMA wholly respects their right not to participate, but recognises that differences in opinion on this subject can be quite marked. Both doctors who are participating and those who are not should respect each other’s right to do so. There should be no coercion of colleagues, to either take part or not.

However, even if you are not taking part in industrial action yourself, other colleagues will be and as such your service may not be able to function as normal. You must be aware that you might be putting patient safety at risk if you proceed with non-emergency and elective work.

Patient care

We know that, as service leaders, consultants may have concerns about patients in their particular specialty (e.g., oncology, paediatrics, etc.) and the impact that industrial action would have on them. That is why we have specifically provided employers with six weeks’ informal notice about the dates we intended to take industrial action. We wanted to give hospital Trusts and colleagues plenty of time to prioritise and reschedule the most urgent cases and minimise the impact on those patients.

Academics delivering NHS activity

If your primary employer is university/HEI, you will be expected to attend your NHS workplace as normal on any day on which you are job planned to be delivering NHS activity. See our full guidance on whether you can take part or not if you are unsure. 

However, services are likely to be significantly disrupted while other consultant colleagues are taking industrial action. Without access to other services, such as radiology and pathology, you will need to determine whether your service is able to function safely, or whether non-emergency and elective work can proceed.

The BMA recommends that no elective activity should be scheduled for the strike days and that, where a trust proceeds with such activity, a full risk assessment must be undertaken. Patients undergoing surgery or invasive procedures must be informed that the strikes are occurring, that there is additional risk in the event of complications, and their consent to proceed must be given.

Academics delivering academic work

If you are a consultant clinical academic due to be delivering academic work for your university/HEI employer on the days of action, you should do that as normal.

Dealing with pressure to return to work

Contact us if you are under pressure to return

If you feel you are coming under pressure from anyone to participate in delivering care that is clearly not emergency care, you should contact your designated local representative, who will be clearly identified on the day. We will support any consultant BMA member who is pressured to return to work.

If you believe you are being pressured to go back to work, you should contact us as soon as possible. However, your local representative is better placed to intervene on the day. It is important that you keep a note of what happened, including retaining emails. 

Link up with other doctors in your department

Successful collective action depends on your ability to support each other. Make sure you know which other doctors in your department are participating and group together on the day for mutual support.

A number of trust all-consultant WhatsApp groups have been set up to allow consultants to communicate and coordinate. You can also directly message members of your Local Negotiating Committee (LNC) for advice and support.   

Other considerations

If you are unwell on a day of industrial action

Workers who are absent on sick leave when industrial action takes place keep their right to statutory sick pay.

Employers can be expected to make their own judgement as to how to regard your absence if you call in sick on a day of action. 

Some employers have tried to introduce special rules about sick certificates in the event of sick leave during industrial action. If this is the case at your workplace, your LNC (local negotiating committee) should inform their BMA IRO (Industrial Relations Officer). They will take the matter up with management.

It is likely that some employers will say that they can insist on a medical certificate from an individual's doctor to cover absence on or around the period of industrial action. This is because they believe that these are exceptional circumstances. Some contracts do include a clause specifying this. If there is not an expressed provision in contracts then your employer may refer to their own absence/sickness reporting procedures. It is our understanding that these procedures may also have an exceptional circumstances clause.

In the event of a 'major casualty event'

A major casualty event could take a number of forms. For example, a major accident or security incident.

The pressure which hospitals find themselves under on a regular, sometimes daily basis does not constitute such an event. Your trust calling a critical incident will not in itself meet our criteria. In the event of a “major casualty event” the trust should urgently contact NHS England. If NHS England agree that the situation may justify asking consultants to return to work, such request will be submitted to the BMA for urgent consideration.

However, given that consultant action will not affect emergency service provision, we do not anticipate that this will be necessary.

In the event of an externally declared major or mass casualty incident that affects the normal resources of the emergency and healthcare services’ ability to manage, we have a clear process agreed with NHS England set out. Derogations (exemptions from industrial action) will first need to be agreed by the BMA at a national level. If there is a derogation at your department or Trust, you will be asked to return to work by your Trust and we will confirm this on our Twitter account and strike action toolkit as soon as possible. Please always check for a verification from the BMA.


Other medical colleagues

Junior doctors and SAS doctors are not in the scope of this industrial action. As such, they will need to attend work as normal. Where scheduled services that they would ordinarily take part in need to be cancelled, there may not be work for them to deliver. Junior doctors and SAS doctors who do not work autonomously should not be undertaking scheduled activity given that consultant supervision will not be in place.

Additionally, they cannot be asked to ‘act up’ by their employer, as there will be no consultant supervision. For SAS doctors who work autonomously, and where activity is listed under their name, where any elective activity goes ahead during IA, a full risk assessment must be carried out.

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Or contact our member relations team at [email protected] if you have a question about your personal circumstances.