As had been widely forecast from informal polling, junior doctors voted yesterday to reject the new contract that had been agreed between NHS Employers and the BMA in May, subject to the outcome of the junior doctors' referendum. The BMA junior doctors' leader, Johann Malawana, who had recommended the deal, has resigned and there does not appear to be any prospect of further negotiations. The Secretary of State is reportedly 'minded' to impose the contract.
It's worth noting that the Secretary of State has no legal power to impose the contract on junior doctors without legislation. However, NHS Improvement is likely to instruct Trusts to employ any new junior doctors on the terms of the June 2016 contract agreed by the BMA and NHS Employers.
What this means for employers
For employers who will be employing a new intake of junior doctors in August the no vote means:
- More complexity. An agreed outcome would have changed the contract of every junior doctor in employment in the NHS, subject to the transitional provisions in the new contract. An imposed contract will only apply to the new intake and to junior doctors changing jobs, either within trusts or on rotation between employers. Employers will therefore have to work with, and budget for, two junior doctors' contracts for the time being. That creates a big challenge in ensuring they all work effectively together when rostering and working time arrangements will differ between those on the old and new contracts.
- Guidance from NHS Employers, along with a new version of the contract, should set out how the transitional provisions in the June version of the contract will be amended to accommodate an imposed outcome. This will still probably mean that the 1 August intake will be employed on the old contract and transition to the new one in October.
- For those junior doctors transitioning from the old to new contract, pay protection arrangements will potentially apply even though they may only have been on the old contract for three months.
- The implementation 'pause' is still officially in place but there is of course very little time before the new intake starts and the final pay structure, IT and payroll systems have yet to be issued or put in place. Guidance on implementation can be expected imminently from NHS Employers. Our previous alerts deal with some of the key issues. If the new contract is imposed there is lots of work to be done and very little time to do it.
- In the absence of further information employers cannot work out the cost of engaging its new cohorts of junior doctors. By the time they do they will be part way through the financial year with budgets already set. With ever tighter budgets this is a real issue.
- Junior doctors have previously supported strike action in pursuit of their opposition to the new contract. If there is a renewed appetite for further strikes, the BMA, having recommended the new contract, will have a difficult decision to make about whether to support them, especially given the wider issues facing the United Kingdom. A strike without the backing of the BMA would be unofficial and the BMA could be placed in the invidious position of having to repudiate it expressly to avoid legal action.