Imposing a new contract unilaterally will be a huge gamble if Jeremy Hunt and the Conservative Government go through with it.
Under UK law, a contract may only be amended in accordance with its current terms, or with the agreement of all parties to it.
This means Jeremy Hunt cannot impose changes on the junior doctors against their will.
But there are precedents suggesting that, where fundamental contractual changes are proposed that will harm employees – as in the case of the junior doctors, no matter what Hunt may claim – the employer has several options:
He can consult with the employees, in order to get them to agree to the changes. Hunt has been trying this for many months by now, and has talked himself into a corner and at a standstill.
He can unilaterally impose the change and rely on employees’ subsequent conduct to establish implied agreement to the change. This is what Hunt is threatening to do, in the hope that junior doctors would rather keep their jobs than venture out into an uncertain employment market.
Except, for doctors, the employment market isn’t uncertain. These are highly-intelligent, highly-qualified individuals. The Scottish health service is already trying to lure doctors north of the border and no doubt healthcare providers from many other countries will make offers too – if they haven’t already done so.
Imposition of a contract in these circumstances therefore creates a huge risk of depopulating NHS England of its junior doctors, leading to huge gaps in healthcare provision.
It seems Hunt is happy to risk creating another crisis.
Perhaps Hunt is banking on the doctors giving in to him as an act of conscience – that they won’t be able to live with themselves if they abandon their patients to his tender ministrations.
It’s a valid argument; the Health and Social Care Act 2012 removed the duty of the Health Secretary to secure or provide comprehensive health services and abandoning their posts would give the pro-privatisation Hunt a huge opportunity to accelerate steps toward a for-profit medical system (it would be impossible to call it a health service as its operators would be interested in money, not health, and the only service they’d provide is to themselves).
But it would be universally unpopular – to such a degree that nobody knows how strongly the public would react.
So we have to ask ourselves: Is Jeremy Hunt a gambling man?
The final alternative would be for Hunt to terminate all the junior doctors’ contracts and offer re-employment on the new terms. Low-pay-grade council workers up and down the UK will be familiar with this dodge as it has been used to subject them to humiliating new pay offers and conditions of work.
In practise, this would be much the same as the second option, and Hunt can count on much the same reaction from the junior doctors. They aren’t in the same situation as the council workers and they know they have public support.
Let’s hope they stick to their principles and force Hunt to back down. It’s time these Tories learned they can’t have it all their own way.
Junior doctors’ leaders have rejected a “final take-it-or-leave-it” offer made by the government to settle the bitter contract dispute in England.
The offer included a concession on Saturday pay, but the British Medical Association said it was not enough.
The development is expected to lead ministers to announce that they are going to impose a contract on doctors.
The news has emerged as doctors take part in their second 24-hour strike – due to end at 08:00 GMT on Thursday.
During the walk-out they provided emergency cover, but the stoppage led to the cancellation of nearly 3,000 routine operations and treatments. GP care was largely unaffected.
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