This page provides up to date guidance and FAQs.
The following documents are being updated regularly so we would recommend that this page is saved to favourites, rather than the individual documents. This will avoid broken links and make sure you always have the most up-to-date versions.
NHS Employers has worked with Capsticks to develop up to date employer guidance and supporting frequently asked questions (FAQs) to raise awareness of industrial relations good practice in the conduct of trade union industrial action ballots.
- Capsticks' industrial action and contingency planning summary flowchart.
- Capsticks' guidance and FAQs.
Question number Question Date added or updated 10.7 What steps do we need to take if we do not want to accept partial performance? 27 September 2023 8.6 Can staff on strike undertake agency work? 2 August 2023 7.3 Can volunteer personnel be legally requested and/or offer to help keep a service running during industrial action by substantive personnel (if skills and training are appropriate)? 2 August 2023 12.12 What happens if someone strikes on a bank holiday? 28 April 2023 6.4 Can employers cancel planned annual leave during the period of industrial action? 30 March 2023 10.8 What are the rules on deducting pay if someone works different hours? For example, a staff member strikes for three hours of their 12 hour shift. Do we utilise the calendar day rule? Or do we deduct pay based on what would be an hourly rate for that band or bank rate? 20 March 2023 10.9 Is London weighting included in the pay deductions made for a strike day? If so, at what rate? 20 March 2023 10.10 What if the hours that were due to be worked on a strike day would have attracted unsocial hours’ payments? Should those enhancements be deducted from strike day pay and, if so, at what rate? 20 March 2023 10.11 Should we ensure that strike pay deductions are applied consistently across all staff groups, e.g., nurses, physios, medics? 20 March 2023 1.8 Where doctors in training are employed using the lead employer trust (LET) model, what are the notification requirements? 16 January 2022 6.1 What happens if staff continue to strike even though the unions have agreed a derogated safe staffing level? 23 December 2022 6.2 How can we ensure that staff safely follow derogations that have been agreed? 23 December 2022 7.8 Union representatives are proposing to access the site to view wards and services and call out any staff working outside of the derogation agreed in the event of industrial action. Can they do this? 5 December 2022 7.9 We are aware that union members have been told that if the order to strike is given and their branch voted to strike, members must strike or relinquish membership. Can they do this? 5 December 2022
Pay and contract FAQs during concurrent strike action by junior doctors and consultants
These new FAQs were added on 15 September.
Consultant strike action FAQs:
These FAQs were added on the 15 September 2023
Q. 20 Can we direct non-striking consultants to undertake the work of those who are rostered to provide Christmas Day cover but refuse to do so? (added on 15 September)
Where a non-striking consultant is attending work, they can be asked to undertake different duties (including those of the striking consultant) provided such duties are reasonably incidental to those set out in the job plan of the consultant who attends work or fall within a reasonable expectation of adaptability. How willing a consultant is to move and cover the role of a striking consultant may depend on their expertise and skillset and what tasks the organisation is asking them to undertake. Where consultants attend on site and follow management instructions regarding any variation on the day of strikes, they should continue to receive their normal pay.
Any duties that consultants attending the workplace on a strike day are asked to undertake which are not reasonably incidental to their job plan, do not fall within a reasonable expectation of adaptability and/or are outside their rostered hours will be extra contractual duties, the pay rates for which should be agreed at a local level.”
Q.19 How are Additional Programmed Activities (APAs) affected by industrial action deductions? (added on 13 July)
ESR will automatically reduce payment for APAs where there are days of unpaid leave within the month and, therefore, even though a consultant works a full APA, because they have taken strike action, their pay for the APA will be reduced.
We anticipate that most organisations will want to avoid a challenge by ensuring that APAs, which are worked, are paid in full. As this is an automatic element of ESR and cannot be removed, manual calculations at a local level will be required for APAs that fall in a month during which consultants are on periods of unpaid leave for strike action.
The manual payroll calculation required to counteract a 1 APA deduction when deducting 1 day’s pay is:
1 APA = 1/10th of the annual salary (basic pay plus any discretionary/distinction and pre-2018 awards payments that may apply), divided by 12 to get the monthly sum, divided by the number of days in the particular month strike action took place.
A worked example of a consultant that has 1 APA and a salary of £88,364:
1/10th of £88,364 = £8,836.40
£8,836.40 ÷ 12 = £736.37
£736.37 ÷ 31 = £23.75
Therefore, in this example, the consultant would need a manual payment of £23.75 per APA per strike day.