Junior doctors like me have been crying out injustice for over two months now. The idea of an imposed contract has, unsurprisingly not been met with a warm reception and so in addition to a plea for genuine opportunity to negotiate, The BMA have been clear that withdrawing this threat is crucial for progress. Personally, I have been pretty vocal about my negative feelings regarding the idea of an imposition….but is it reasonable?
Employment law makes it clear that unilateral imposition of a contract on employees is a last resort and to play this game puts the employer at risk of legal proceedings for constructive dismissal, breach of contract and unfair deduction of wages. If an employer however genuinely believes they are unable to reach agreement, they reserve the right to serve notice and offer re-employment under the new contract terms. The central value however remains that this can only be condoned as an absolute last resort where full and thorough consultation has failed. An important point here is that for any junior doctor who has read the DDRB report, its appears that consultation cannot have been conducted appropriately. This is of course not just because they don’t agree with it, but because it contains too many wildly ill judged plans and too many unjust statements. The report reads to junior doctors like a recipe for disaster, both for patients and the sustainability of quality of care within the NHS. The case for adequate consultation is further hindered by the Department of Health’s persistent effort to conflate the junior contract issue with their wider plan for a ‘truly 7 days NHS’. The Department of Health say they’re coming through on their democratically elected manifesto promise. Junior doctors say that the Department of Health have in fact no idea what they mean when they say that. That their plan to radically alter one profession’s employment terms has no firm evidence base, are seated on faulty logic and don’t in any way address the support services needed to keep patient flow steady across 7 days. Junior doctors say that the purpose of this push is to allow the current government to look like they have delivered a promise they made but had no intention of properly defining, planning or funding.
The question remains however; are we realistic in our demand that the threat of imposition is removed? The answer I think lies in the difference between what is implicit and what is explicit…and yes I believe that it is more than just semantics. The law tells us that the option is there for our employer. Yes, there are strict terms, but essentially it is a card they can choose to play. Setting a date for imposition however makes the threat explicit. August 2016 is my immediate future and I can feel the threat dangling over my head.
To think of it in another way…. Mr Smith and Mrs Smith are having some marital issues. Mrs Smith can tell her husband “I really want to work this out”. She could also tell her husband “I really want to work this out, and if we don’t I’m going to divorce you”. I’m sure you can guess which statement is likely to get the better response? Neither is incorrect, of course Mrs Smith may in the end divorce her husband in either scenario. It is implicit in her rights. Using it as a rod to drive progress however makes it a threat and it doesn’t take a qualified marriage counsellor to tell you that if you want a relationship built on mutual respect, that sort of behaviour is a bad idea.
So are we reasonable to request that the threat of imposition is withdrawn? I will have to keep thiking but my initial feelings are that perhaps I would settle for retraction of the planned immenent and explicit imposition, because in the end the threat will always been implicit. If I could in the meantime speak to Mr Hunt I would probably say that imposition is not your trump card; your trump card would be to acknowledge the insult in that explicit threat. Your trump card is facing up to the reality that tens of thousands of doctors are finding it impossible to trust you. Your trump card is remembering that imposition would be at the expense of everything that is possible for the NHS if we worked together. As Dwight Eisenhower said ‘leadership is the art of getting someone else to do something you want done because he wants to do it’. He believed in inspiration, not intimidation.
And what of our trump card? Our trump card is remembering to hold most dear all those things which make us a valued and trustworthy profession. Our trump card is remembering that patient care is our business. Our trump card is to be strong enough to continue to stand up for what is right for our patients and our profession but to remember that Dwight Eisenhower’s advice of course applies to us too.