The answer is yes – but there are ways in which the junior doctors can challenge the imposition.
Last week the government announced that it would impose the new contract on Junior Doctors following many months of protracted negotiations with the doctors’ union, the British Medical Association (BMA). Junior Doctors have warned that imposing the contract would lead to dangerous working practices that would put patients at risk, a reduction in their salary, and would result in a exodus of doctors from the NHS to work abroad or to change careers entirely. In response to the announcement of the imposition of the contract, the BMA has warned that it will “consider all options.”
From an employment law perspective, one of those options may be a breach of contract claim. In principle (in the absence of provision for a change of terms in the existing contract, or the agreement of the employee) an employer cannot unilaterally change the terms of an employment contract. If an employer imposes contractual change to a contract without the employee’s express or implied agreement, they will be in breach of the original contract.
The options available to the employee, in this case the junior doctor depends on the facts of their individual circumstances, who their employer is and the nature of their employment contract. Depending on the individual doctor’s circumstances, junior doctors’ have a number of employment law options open to them in challenging the imposition of the contract.
Firstly, the junior doctor cannot stay silent in response to a change of terms. This is effectively seen as consent to the breach, and has the effect of removing the junior doctor’s ability to challenge it. Naturally, the junior doctor may take a short period to consider the implications of the breach, and there is no fixed period for how long this can be; but the longer the junior doctor takes to register dissent, the more likely it will be that she has lost her chance to challenge the breach.
If the breach of contract is a fundamental breach going to the root of the contract – most obviously in cutting pay or increasing hours – the junior doctor can resign and bring a claim for constructive unfair dismissal against their employer, assuming that the individual in question meets certain qualifying criteria, for example two years’ continuous service with the employer. By doing so, the doctor is saying to the employer “this breach of contract is so serious that you have effectively torn up the contract, and I have no choice but to acknowledge that it has brought my previous employment to an end.”
If the doctor does not wish to resign, they can “stand and sue.” In practice, this means that they will work under the new terms of the imposed contract under protest and bring a claim for damages arising from the breach of contract. The measure of the damages in such a claim would be the sum of money necessary to put the doctor in the same position as if the original contract had been properly performed by the employer. If the imposed new contract results in a shortfall of wages, the junior doctors might have the option of bringing an unlawful deduction from wages claim. This may apply for example if the junior doctor works on Saturdays, where the new imposed contract results in a reduction in their pay.
Another potential option is that the doctor could refuse to recognise the new contract and continue to work under the terms of the old contract. In practice, whether or not this is actually possible is unclear and it would probably only be in relatively few cases if any. Any doctor refusing to attend a given shift, for example, could potentially be disciplined and lawfully dismissed.
Finally, the contract raises real risks of discrimination. The conversion to a seven day timetable adversely impacts those with childcare responsibilities – schools are not open at the weekend, so alternative childcare must be found and paid for, and family life is damaged by the loss of the weekend. Where the family in question is a single parent family, the worker in question is statistically far more likely to be female than male, and as a result it may well be the case that the imposition of the contract effects women more negatively than men.
It is important to remember that the term ‘junior doctor’ applies to over 45,000 doctors, ranging from those who have just graduated medical school to those who are registrars and specialists. That is, all doctors who are not yet Consultants.
When it comes to challenging the imposition of the contract, there will be particular difficulties for those doctors at the more junior end – the trainees.
To bring a claim for constructive unfair dismissal, the doctor must be an employee with two years’ continuous service. However, the contractual relationship between trainees, their Trust and the Deanery is not straightforward. During foundation years 1 and 2, trainee doctors are assigned on a training rotation with several months in different surgical and medical specialisms. The trainee doctors are allocated to an NHS Trust by Health Education England (HEE), trained by the NHS Trust, under the supervision of the Deanery. It is not always clear who the doctor’s employer is, and this may present an insurmountable hurdle to a trainee seeking to bring a breach of contract claim against a Trust.
For the trainees, each training rotation is effectively a fixed term contract, potentially with fresh contracting parties, and potentially resetting the continuous period of service to zero. As such, some trainees – and potentially a large majority of trainees – will not have the two years’ continuous service that is necessary for a constructive unfair dismissal claim.
In their briefing note dated 15 February 2016, HEE stated that the new contractual arrangements will be introduced for trainees in hospital posts approved for postgraduate medical/dental education. From 3 August 2016, according to the HEE briefing note, the new contract will be introduced to trainees and that current doctors will retain their current contract until the date on which they transfer to the new contract.
Under the government’s plan that the new contracts are rolled out with training rotations, then that that would not be easy to frame as a breach of contract. The old contract has simply expired at the end of the rotation – and not been breached – and the doctor has been offered a new one. The fact that the terms of the new contract are less desirable than under the old contract is not a breach of contract.
However, if the government’s stated aim is to have a ‘7 Day NHS’, then it is reasonable to assume that their intention is for the new contract is to be imposed on the more senior junior doctors, such as registrars and specialists.
More senior junior doctors may have a more traditional permanent bilateral contract with an employing trust and would therefore be in a better position to bring a constructive unfair dismissal claim. However, even those doctors are usually on 18 month contracts at most, and therefore would not qualify to bring a constructive unfair dismissal claim.
For junior doctors wanting to fight the imposition through employment law, there is no “one size fits all” solution. Each individual doctor’s situation would need to be looked at in its own right. However, just as the situation is complex for the junior doctors, so it is complex for the NHS institutions. The Department of Health, NHS England, Health Education England, the deaneries and the individual trusts will no doubt be “wargaming” the next twist in the dispute to understand the likely outcomes and their own potential liabilities.