The NHS is threatening legal action against striking nurses, claiming that the second day of their planned strike next month would be ‘illegitimate’.
NHS employers wrote to the Royal College of Nursing (RCN) yesterday, warning they have no legal mandate to authorize union action in England on May 2.
It means the health service and the nurses’ union could face a clash in the Supreme Court over whether the unprecedented strike can go ahead.
Pat Cullen, CEO of the RCN, announced last week that there will be a 48-hour strike from April 30 at 8 p.m. to May 2 at 8 p.m., after the union rejected the government’s wage offer. It will see thousands of nurses walk away from ER, intensive care units and cancer wards for the first time in the increasingly bitter dispute.
But NHS Employers, a membership organization of NHS trusts, says the action would be illegal because the RCN’s strike mandate expires at 11:59pm on May 1.
Pat Cullen (photo: centre), General Secretary and Chief Executive Officer of the Royal College of Nursing. The union’s planned 48-hour strike on April 30 has come under fire for possibly being illegal
By law, unions in England can only go on strike within six months of their industrial vote.
While the RCN announced the results of their historic strike vote on November 2 last year, NHS Employers claims that this period technically ends on May 1.
In a letter to the union, viewed by MailOnline, Paul Wallace, the organization’s director of labor relations and compensation, wrote: “Any action taken from (00:00:00) on May 2, 2023 by the RCN or its members will not the support of the vote and shall be unlawful, and it shall be unlawful for the GKv to authorize such action.”
He adds that NHS employers expect the union to now try to communicate with its members not to strike on May 2.
But the RCN would contest NHS Employers’ claims and is prepared to fight them in court.
In a letter sent in response, the nurses’ union said it is legal to allow the union action to continue until May 2, following a precedent set by a mining dispute in 1995.
The RCN wrote: “I trust you agree that our strike action on May 2, 2023 until 8 p.m. or the start of the night shift does have the support of the vote and is lawful.
“However, and if employers apply for an injunction on this basis, it will be vigorously opposed by our lead counsel engaged in this matter and we will also seek to recover our costs if such application is unsuccessful, which in my opinion would be. .’
The dispute marks a serious escalation in the bitter pay dispute between the health service and NHS unions over pay.
If it goes to court, taxpayer-backed lawyers could be fighting the unions over the legality of union action.
The RCN’s 48-hour strike came after members narrowly rejected an offer of a 5 per cent pay rise and a one-off bonus of up to £3,789. Fifty-four percent of members voted against.
The offer, which was endorsed by union leaders and ministers, came after a wave of strikes by nurses initially seeking a 19 percent wage increase.
RCN leaders have demanded new talks, but Rishi Sunak has insisted there will be no more money to improve the deal, which has already been accepted by Unison, the largest health union.
Unlike the RCN’s previous strikes, the upcoming industrial action would involve emergency, critical care and cancer departments for the first time.
This escalation led health leaders to warn that mental health patients could harm themselves, take their own lives or pose a risk to others if nurses continue to plan to escalate their strike action later this month.
Insiders also fear the nurses could now coordinate future strikes with junior doctors in a move that would be devastating for the NHS.
More than 500,000 NHS appointments and operations in England have been canceled due to staff strikes, with further disruption planned
It comes as the head of the Academy of Medical Royal Colleges warned young doctors’ strikes are harming patients and urged a third party to step in to negotiate between the British Medical Association (BMA) trade union and the government.
Professor Dame Helen Stokes-Lampard said progress should be made in the negotiations and urged both sides to show some flexibility to end the union action and make progress on pay.
Last week, the BMA asked ministers to enter into talks organized by mediation agency ACAS to end the bitter dispute.
However, Downing Street today rejected the offer, saying no talks will take place unless young doctors give up their starting position of a 35 per cent pay rise and call off strikes.
Nearly 200,000 hospital appointments and procedures in England had to be rescheduled when tens of thousands of junior doctors staged a 96-hour strike between April 11 and 15 in a dispute over wages.
That came on top of thousands of appointments that had already been canceled or delayed by strikes by other unions, including the RCN.
Adding in community engagements brings the total affected since December to more than half a million.
Professor Stokes-Lampard told BBC Radio 4’s Today program that catching up on the lost appointment will take ‘an awfully long time’, adding: ‘Meanwhile, patients are suffering.’
She continued: “It has to be brought to a conclusion, and before you can even start negotiating, you have to have preliminary talks to set the parameters. “What worries us as an academy – and we’re definitely not a union, we’re the membership organization for doctors – is that there doesn’t seem to be any pre-consultation about talks.
‘We are pushing for some flexibility on both sides – the physician assistant committee (of the BMA) and of course the Ministry of Health, Welfare and Sport.’
She said that it “doesn’t matter who or what” the outside intermediary is, things just have to move forward.
Professor Stokes-Lampard said she is ‘seriously concerned’ about patients missing or delayed procedures and who are in ‘pain’ or suffering.
She added: “We have the longest waiting lists in the history of the NHS, for reasons we all understand – the pandemic made worse by more than a decade of underinvestment in our service – and we have a body of junior doctors who to have.
‘They’re angry, they’re frustrated and they’re burnt out, and they’re leaving our profession en masse. They need care.’
She said doctors are weighing the dilemma of the ‘long-term harm’ being done to the NHS by chronic underfunding against the ‘short-term harm’ being done by the strikes.
She said there are different views among doctors, but everyone wants a solution.
She added: “What we do want is for both parties to offer some flexibility, compromise. “Get out of your entrenched positions. And please, please start talking. Whatever it takes to start talking, let’s do it, because without talking this won’t be solved.”
Professor Philip Banfield, chair of the BMA council, said the union organization is not ‘entrenched’, adding that ‘there is no number set in stone here’ to the call for a 35 per cent pay rise.
He told the Today programme, “People are stuck with this 35 percent figure. “There is no number set in stone here – it is the principle of restoring wages lost in value.
‘It needs people around the table to discuss what that means and why.
‘This cabinet does not want to sit down at the table. It does not want any form of independent arbitration on this matter, because it is afraid it will cost money.’
The Prime Minister’s official spokesman said: “In the first instance, the Health Minister is prepared to speak directly to the BMA, once they suspend the strike action.
‘We have already arranged this in all other discussions with trade unions and have been honored by other trade unions.
‘As the Minister of Health said earlier, we have to move away from the starting position of 35 percent.’
And Sir Chris Wormald, Permanent Secretary at the Department of Health and Social Care, also told MPs this morning that third-party mediation ‘is not the government’s preferred route, that’s not something we would take up’.
NHS leaders have urged the RCN to rethink critical services staffing during a strike later this month.
In a new plea, the NHS Confederation, which represents NHS organisations, said mental health leaders are warning of ‘serious implications’ for patient safety as the number of nursing staff is spread ‘even thinner than usual’.
In a statement, it said mental health leaders are “deeply concerned that if the Royal College of Nursing remains firm in its decision not to allow derogations for services, including emergency and critical care, at a national or local level , and do not agree to exempt high security and inpatient psychiatric units, the risk of a serious and sustained impact on users of services cannot be mitigated.”
The NHS Confederation said the RCN’s current position could mean that people could become a risk to themselves, “including by harming themselves or in extreme cases taking their own life, as well as others”.
A mental health leader in the Northeast said it is “deeply concerning” to find that no deviations have yet been agreed, adding: “I strongly believe that crisis and emergency mental health services should be be exempted.’
The Academy’s intervention came as health chiefs feared the prospect of trade unions, including the BMA and RCN, coordinating or stringing together strikes, which would have a huge impact on the NHS.
Unite paramedics announced on Wednesday that they will walk out with nurses and teachers on May 2.
Elsewhere, the National Medical Director of the NHS, Professor Sir Stephen Powis, said the strikes are having a ‘colossal impact’ on planned care across the NHS.
And on Wednesday, Sir Simon Stevens, former head of the NHS, said in The Spectator that it is ‘clear that the Department of Health’s industrial relations strategy is off the mark’.