Advance planning
Employers have been provided with 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.
In order to maintain patient safety in non-elective areas of the health service, we have agreed that a ‘Christmas day cover’ will be provided by consultants and SAS doctors. To facilitate this, we have agreed a framework definition of Christmas day cover, as well as a joint letter setting out the preparation health boards should be undertaking and the emergency safety provisions in place for strike days.
Key points
- Rotas should be constructed using Christmas Day 2023 as the baseline. The document outlines the sorts of services that would be expected to run on Christmas day, and those that would not.
- Different sites deliver services in different ways; therefore, the framework gives guidance on how to apply the definitions.
- Health boards should now engage with Local Negotiating Committees to plan the application of the definition within their sites. This may include some positions that would normally be on-call being converted to resident shifts, with appropriate renumeration. Where agreement cannot be reached locally on how to apply the definition, we will oversee the resolution to this.
Who should provide emergency cover on strike days?
In a department where all consultants are striking, we suggest that the consultant who is scheduled to be on-call out of hours on the day of action would typically be the one providing the emergency cover. If you are the on-call consultant, it is reasonable for your employer to expect you to be clear about whether you intend to take strike action in order that they can attempt to find alternative cover that will enable you to do so.
If there are consultants in a department who are not striking, and the person who is nominally on-call 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. Equally, if there are consultants on the rota who are not working that day, it is reasonable for the health board to explore whether they would be willing to provide cover to enable the rostered doctors to strike.
You should only be expected to provide the cover in the event that they cannot make alternative arrangements that would enable you to strike.
Providing cover will not attract additional rates of pay if they are undertaken during hours you would otherwise be working if it weren’t for the strike action. Additional work undertaken to provide Christmas day cover outside of this, including the engaging of consultants who otherwise do not work on the day in question, is extracontractual and BMA rates should be paid.
Prior to the strikes, health boards may attempt to schedule additional activity to prepare for days with reduced capacity. This could include the rescheduling of some time-sensitive care, or additional ward rounds to facilitate discharge in order to build capacity for strike days. You may undertake this work if you wish to do so and will be engaged under the normal arrangements for additional sessions. We believe that health boards should offer BMA rates for these shifts in order to ensure that the necessary preparatory work is completed prior to strike action taking place.
Undertaking additional work in preparation of strike action
Prior to the strikes, health boards may attempt to schedule additional activity to prepare for days with reduced capacity. This could include the rescheduling of some time-sensitive care, or additional ward rounds to facilitate discharge in order to build capacity for strike days. You may undertake this work if you wish to do so and will be engaged under the normal arrangements for additional sessions. We believe that health boards should offer BMA rates for these shifts in order to ensure that the necessary preparatory work is completed prior to strike action taking place.
Deferring work due to strike action
After the strikes, whilst 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 consultant non-contractual rate card for Wales. The BMA will support doctors who are asked to make up time lost to industrial action.
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.
You may be asked to undertake the Christmas day cover to enable your colleagues to strike. We believe BMA rates are reasonable for this cover, which you should consider providing if you are able and it is practical 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. We wholly respect their right not to participate, but recognise 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 will provide employers with advanced informal notice about the dates we intend to take industrial action. We want to ensure Health Boards/Trusts and colleagues have 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.
We recommend that no elective activity should be scheduled for the strike days and that, where a Health Board/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, please let us know. We will support any consultant BMA member who is pressured to return to work.
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.
An all-consultant WhatsApp group has 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 the day of industrial action
Workers who are absent on sick leave when industrial action takes place keep their right to 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 in England have tried to introduce special rules about sick certificates in the event of sick leave during industrial action. This is because they believe that these are exceptional circumstances. Some contracts may include a clause specifying this. If there is not an express provision in contracts, then your employer may try to refer to their own industrial action reporting procedures. If this is the case at your workplace, your LNC (local negotiating committee) should inform us. We will take the matter up with management.