Action short of strike (ASOS) is another form of industrial action to effectively sustain pressure. In the re-ballot to extend our mandate for industrial action, which closed on 20 March 2024, we needed members to vote YES for strike action and YES for ASOS so we had all options on the table.
What is ASOS?
There are, broadly speaking, two forms of industrial action:
- Strike, which is a concerted stoppage of work
- Action short of a strike.
Action short of strike (ASOS) encompasses any other industrial action taken in order to put pressure on the employer in a trade dispute, but which does not amount to strike action.
ASOS can cover a wide variety of different actions, for example not performing certain tasks, going slow, or working to rule. This has the effect of allowing workers to take industrial actions that will apply pressure to their employer without taking strike action.
Why did we ballot for ASOS?
Due to the Government’s introduction of new anti-strike legislation in the form of the Strikes (Minimum Service Levels) Act 2023, we need to keep our options open with additional forms of action that can also make an impact. ASOS falls outside of the remit of the Strikes (Minimum Service Levels) Act 2023 and therefore the Government would not be able to impose work notices for this type of action.
We intend to carry on striking, with full walkouts, until the Government comes to the table with a credible offer, but having a mandate for both strike action and ASOS keeps another option on the table. We need to show them that attempting to restrict our right to strike is no way to resolve this dispute. Other unions have successfully used ASOS in their disputes and if needed, we will do the same.
What will we aim to achieve through ASOS?
ASOS can be used either not at all, interspaced with strike action, or independently from strike action. Our aim is to have another tool in our toolbox to maintain pressure on the Government.
We will do what is necessary to ensure the Government knows doctors are committed to full pay restoration.
The way to end our dispute starts, not by attempting to stifle industrial action, but with a credible offer from Government.
The legal framework
The Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) sets out the legal framework for lawful industrial action. This includes both strike action and ASOS.
The rules governing dismissal for participation in any form of industrial action, including ASOS, are set out in TULRCA and provide the same protections for ASOS protected under a ballot as they do for strike action protected under a ballot. As such, employees taking protected industrial action in the form of ASOS will be protected from dismissal for 12 weeks, the same as for strike action. The protection continues beyond 12 weeks where either (a) the employee has stopped taking action or (b) the employee has continued to take action and the employer has failed to take reasonable steps to try to resolve the dispute. Dismissal for taking official industrial action (including action short of strike) will be automatically unfair in these circumstances.
By balloting our members for ASOS, we ensured that our members have the legal trade union protection for undertaking those actions that we balloted for, if it is called for.
Deducting pay
Whether your employer can make deductions from your pay because you are taking industrial action will depend on the specific circumstances.
If the action you take does not breach your contractual obligations, then the employer will not a have a legal basis to make deductions from your pay.
If the action short of strike constitutes a breach of your employment contract then your employer can choose how to respond. They can either:
- accept the partial performance of your employment contract. This means accepting that you are in breach of some of your duties but nevertheless allow you to continue to perform your remaining duties. Employers can and often do make a deduction from pay in respect of the duties which you are not performing. Such deductions will be lawful but only if they are proportionate; or,
- insist on you complying with your contractual obligations fully or remain away from work entirely, without pay – known as a ‘lock out’. Whilst employers are entitled to refuse partial performance and lock out employees taking industrial action, they tend to avoid this option not only because it is very disruptive from an industrial relations perspective, but also because with ASOS staff would still perform many of their normal duties. Requiring staff to stay away from work completely has a much bigger impact for the employer who would need to find cover and justify any disruption caused to the wider services.
Your employer is not under any obligation to accept partial performance. If they have clearly told you that they will not accept partial performance and that you are not required to work, you will not be entitled to pay for the period of the action even if you have attended work and performed work; you will be deemed to have worked voluntarily.
I am a locum. How will this affect me?
You can take industrial action if you are employed by a trust. The overwhelming majority of locums are employed by trusts. You can still be employed by a trust even if you use an agency to book shifts. Locums employed by trusts are regarded as self-employed. The usual legal position regarding self-employed persons is that they are free to accept or reject offers of work as they see fit.
To find out, check your contract from your employer or look at your payslip. If you are still unsure, contact us. If you are though working as a locum for an agency under an agency contract and, having not cancelled the shift, you are working this shift, we would advise you not to take ASOS, as you would be breaking your contractual arrangement with an employer outside of the NHS and therefore outside of our dispute. However as true agency employed locums are extremely rare, we would encourage you to confirm your situation with your local rep before not undertaking any industrial action.
Depending on your notice period and the specific wording of your terms of engagement with the trust, we'd encourage you to cancel any shifts you’ve already booked during the strike period. Read our guidance on cancelling shifts as a locum.
What should I say if my trust asks if I am taking ASOS?
There remains no need for a doctor to inform their employer they are taking industrial action in advance of taking it. Should your employer question you on this, you may respond by saying that the BMA has advised you that you are not obliged to answer.
If your employer is insisting that you provide them with this information, please contact your local BMA representative for support.
More information
Members will receive more information about the types of ASOS the BMA might call for and we will be holding webinars where you can hear more about ASOS and ask any questions. Dates and registration information will be published soon.