Junior Doctor Strike Action:

A Lesson in How Not to Negotiate Contractual Changes

With junior doctors on the verge of a historic 5-day strike protesting a proposed change to the terms and conditions of their employment, this week we are going to look at managing contractual changes the right way… 

Whether you are on the side of junior doctors across the country, or that of the Government intending to make the changes, it’s hard to argue that the contract negotiation process between the two parties has been conducted particularly successfully. Strike action is sometimes unavoidable, but the 5-day strike planned by junior doctors is likely to have long-term consequences both for the NHS as a whole, and the patients that are unfortunately stuck in the middle of it all. Both sides present well-meaning arguments, with the Government feeling that the contractual change will allow the NHS to operate more successfully 7 days a week, and the doctors feeling that this will result in worse overall patient care. As a result, the negotiation process has been fraught with difficulty, with junior doctors claiming that the Government has been inflexible and lacks understanding of what the changes mean in real terms, and with Theresa May accusing junior doctors of “playing politics” with their strike action. 

So what does this mean for smaller businesses, and what should you do if you need to change the terms and conditions of your employees? Whilst strike action may not have quite the same impact as it will for the NHS, it could still result in the loss of business and productivity for your company. Even if your employees don’t strike, a poorly managed contract negotiation process could lead to a drop in employee morale, increased staff turnover, or an increase in ER issues.  

If your business needs to make changes to its employee’s contracts, it’s first important to assess what impact these changes may have on these employees. If the changes you are proposing are substantial, and detrimental when compared to the previous terms, you may need to compensate your employees for this change. It is also wise to check the current contractual terms of these employees to see if certain changes are permitted without further discussion. 

It’s worth remembering that this process is a negotiation (at least in the initial stages), so taking the time to meet with individual employees, providing them with the information they need, and listening to their thoughts on the situation is likely to be to your benefit. If you are able to seek agreement to the changes you will be able to proceed with them without fear of employment tribunal claims (providing the changes themselves are lawful), so fully explaining the business case behind the proposed changes, and what the alternative is, is important. This negotiation process may take a number of days or even weeks, so be prepared to make compromises, particularly if you want to maintain employee engagement.

 There will be occasions where a change is required regardless of whether the employees agree. In these cases it is still advisable to discuss these changes with employees, however, you may be required to dismiss these employees for ‘some other substantial reason’ if you are unable to reach an agreement. In these cases you can then choose to rehire the dismissed employees on the new contractual terms (though they are not obliged to accept the offer). This brute force method is not without its disadvantages, however. Depending on the circumstances employees may be able to claim that they were unfairly dismissed from their position, and could subsequently take you as the employer to an employment tribunal. 

The Government have taken a slightly different approach with the contractual changes they are imposing. Their route was to impose the changes without dismissal, giving junior doctors the opportunity to challenge this change with strike action or by resigning. Whilst the strike action itself is an obvious disadvantage to the NHS, it is also worth remembering that employees that choose to resign may still have a case for claiming that they were constructively dismissed. As is often the case, the threat of employment tribunal claims is not easy to circumvent… 

It's always best to approach any type of contract negotiation with expert advice and guidance at your disposal. RBHR are able to offer a wealth of experience in this area of HR and much more, so please contact us on 01935 411191 or admin@rebeccabevins.co.uk if you are interested in our support.