- Government faces two separate legal challenges over plan to impose a new junior doctors contract
- BMA highlights loss of automatic pay progression, unsocial hours pay and on-call pay impact on women and carers
- Crowdfunded legal action by junior doctors has questioned whether health secretary has power to impose
- Royal college presidents highlight fears over effect of new contract on women
The British Medical Association has asked the High Court to issue an order preventing health secretary Jeremy Hunt from imposing a new junior doctors’ contract.
In its application for a judicial review of the government’s planned imposition of a new contract for England’s trainee medics, the union argues Mr Hunt acted unlawfully in not considering the impact on groups such as women, carers and the disabled before he announced a deal would be imposed.
Alongside the BMA’s legal action a group of doctors, who successfully raised £100,000 in four days, are planning their own judicial review which will question whether the secretary of state has the power to impose a contract on England’s 55,000 junior doctors.
Lawyers for the group have sent a letter before action to the Department of Health claiming: Mr Hunt has no legal power to impose; he has failed to consult with affected groups; and the contract is legally flawed.
The DH has criticised both actions as unwarranted and expensive for taxpayers and pointed to the failure of the BMA to negotiate on weekend pay, as it had agreed to do, which prevented a negotiated settlement being reached.
Previously the BMA’s own lawyers warned that a judicial review on equality grounds would “definitely not” prevent the government from imposing a contract even if the judicial review was successful. On Friday the government published an equality impact assessment and extended pay protection for part-time doctors, carers and those on maternity leave.
During an online webchat this afternoon the chair of the junior doctor committee at the BMA said it was true that there was nothing inherently unlawful about the government’s decision to impose a contract.
In its application for judicial review the BMA said the decision of Mr Hunt was “unlawful” as he had not complied with equality legislation.
It said: “An ex post facto rationalisation for decisions already made is wholly insufficient to satisfy the [public sector equality duty]. The promise of a later wide ranging review cannot cure the defect of omission of a statutorily compliant equality analysis prior to and at the time of the decision.”
Key to the case is the loss of automatic pay progression for doctors and the reduction of unsocial hours pay.
The BMA said: “Currently a junior doctor’s pro rata salary is determined by years of service in a pay scale. Under the imposed contract, salary would increase only upon progression to particular stages of training.
“Women who take one or more period of maternity leave at present return to work with the salary they would have received had they not been on maternity leave. Under the new contract they are likely to return to a salary which has been overtaken by their colleagues who have remained in the workforce.”
It said unsocial hours pay and on-call arrangements would also affect women and carers who will need childcare at weekends and unsocial hours.
The BMA asked the court to quash the decision to impose and grant an order prohibiting Mr Hunt from proceeding with the implementation of the contract.
It also asked the court to order the health secretary to carry out an equality analysis, although this has now been carried out.
The BMA also want a declaration by the court that the health secretary breached his duties under the Equality Act.
A DH spokeswoman said: “Legal action is expensive for all parties and in the circumstances totally unwarranted.
“If the BMA had agreed to negotiate on Saturday pay, as they promised to do through Acas in November, we’d have a negotiated agreement by now.”
The BMA said almost 15 per cent of junior doctors were women and 80 per cent of doctors who train less than full-time are women.
Following publication of the contract and the equality analysis three royal college presidents have warned of the effect on female doctors.
Jane Dacre, president of the Royal College of Physicians and Clare Marx, president of the Royal College of Surgeons, said: “We are very concerned by the language in the government’s own equality analysis of the contract, which warns that features of the new contract ‘impact disproportionately on women’.
“Recent commitments from government to support women in business are greatly welcome. We view the wording of the equality analysis as incompatible with this approach.”
Suzy Lishman, president of the Royal College of Pathologists, added: “I am also concerned that these changes might discourage women from entering medicine generally and entering traditionally female dominated specialties, like pathology, in particular. It is essential that opportunities in all specialties are open to all junior doctors, irrespective of their sex and parental status.”
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