Consultants' guide to industrial action 2023


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

Key considerations for visa-holding consultants

If you are working in the UK on a health and care visa under a certificate of sponsorship from a licensed sponsor, you need to consider the impact of unpaid leave, unauthorised absences and reduction in pay on your visa sponsorship and on your leave to remain.

Unpaid leave

Under current immigration guidance, unpaid leave taken to participate in legally organised industrial action is exempt from the rule that your sponsorship will be terminated if you are absent from work unpaid for 28 days or longer in a calendar year.

Unauthorised absences over 10 consecutive days

If you are absent from work for 10 consecutive working days or more without permission, your employer may be required to notify the Home Office of this absence. The Home Office will consider if further action is required. However, the BMA does not anticipate calling any type of action that would risk visa-holding consultants from breaching the 10-day limit.

Our legal interpretation is that this refers to missing 10 days in a row on which you were scheduled to work or had a shift and not 10 calendar days in a row. This means the count towards 10 consecutive missed working days in a row continues even if there are authorised non-working days that occur in between them. If a series of consecutive unauthorised absences is broken by a day that you did work as scheduled, the count resets at zero. It is the number of your consecutive unauthorised absences, rather than the consecutive number of days of strike action in general, which would contribute to this count.

This is the basis upon which the BMA will fight for members in the unlikely event an employer takes action against them based on a different interpretation.

Please contact the BMA immigration advice service for further advice if you need further support.

Reduction in pay

If your salary is reduced for any period of time, your sponsor will be required to notify the Home Office. They must confirm the reason for the reduction of salary and the dates that the reduction is effective from and to.

Although your sponsor is required to report a reduction in salary to the Home Office, if the cause of this salary reduction is legally organised industrial action, the sponsor cannot end their sponsorship of your visa.

If you are impacted in any way by a reduction in salary that does not result from taking part in legally organised industrial action, please contact the BMA’s immigration advisory service for further information and support.


ILR (Indefinite leave to remain)

There will be no impact on your eligibility for further leave to remain or ILR (indefinite leave to remain) in regards to salary reduction or excessive unpaid leave where the reason for either is legally organised industrial action.

If you are absent from work unauthorised for more than 10 consecutive days, you are at risk of impacting your current visa and any future applications. However, the BMA does not anticipate calling any type of action that would risk visa-holding consultants from breaching the 10-day limit.

If you have particular circumstances that you wish to discuss or that do not fall within the guidance set out above, please contact the BMA’s immigration advisory service for further information and support.

Tier 5 visas

There may be direct impacts from taking industrial action whilst on a Tier 5 visa. Should salary be reduced below the national minimum wage level as a result of industrial action, then your sponsor will need to submit a report notifying the Home Office that this is the case. 

Medical academies (the sponsor of tier 5 visas) have confirmed that participating in legally organised industrial action is a permitted absence for MTI doctors (doctors with a tier 5 visa). The sponsor would only need to report to UK Visas & Immigration if industrial action brought a doctor’s annual pay below the national minimum wage. 

The action being taken will not affect a full-time consultant on a tier 5 visa. Those working part-time may need to calculate the impact that a deduction in pay would have on whether they continue to meet the minimum wage threshold, though it is still unlikely to be an issue. You may wish to contact the BMA’s immigration advisory service for further information and support.

Reporting procedures for visa-holding consultants

Doctors sponsored by NHS trusts

The reporting process at Trusts for absences without permission/unpaid absences involves a Level 1 User (usually, a named HR representative) sending an online report directly to the Home Office confirming any reportable change/activity. 

The Home Office imposes an obligation on sponsors to report certain types of employment activity relating to sponsored workers within a 10-working day period of the activity taking place. This is the only mandated timeframe in relation to reporting on sponsored worker absences. We would therefore encourage those with Trust sponsors to report their absence as strike action to their overseas sponsorship team within 10 days of returning to work.

Should an employer seek to propose a reporting methodology that differs from that of the Home Office guidance as outlined above, please contact us for support.

Doctors with settled status

Consultants who have settlement in the UK, whether that is Settled Status (EU Settlement Scheme) or ILR (remainder of the Immigration Rules), fall outside of the scope of these reporting requirements.

Doctors on spousal visas

The income threshold required to be met for most spouse visa applications submitted in the UK will is ordinarily a combined income of least £18,600 (some exceptions can apply).

It is highly unlikely that a consultant would fail to meet the financial threshold for this visa category by taking strike action. However, if you feel your personal circumstances would put you in jeopardy of being below the financial threshold for your visa, please contact the BMA immigration advisory service.

Doctors with a pre-settled status

If you are on a ‘personal’ visa category such as pre-settled status, you are not sponsored by your employer and so are not under an immigration obligation to report to your employer any plan to take industrial action.

Your employer is under no obligation to report the individual employees’ activity either, as this is not a sponsored role.

Doctors with refugee status

The right to take industrial action is available to all NHS consultants, including those with refugee status.

However, there are a number of different types of status for those who are refugees and, as with all visa types, conditions attached to a visa can differ from individual to individual.

In order for the BMA to best support members, should an individual with a refugee status have a specific question regarding the impact of taking industrial action, please contact the immigration advisory service and we will be able to provide individualised support and advice.

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