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Kemi Badenoch speaking at a podium in a coral blazer against a blue background.

Miracle

Populism makes promises; pragmatism makes progress.

Populism is popular because it tells people what they want to hear. Pragmatism is mostly ignored because it tells them what they’d rather not know.

Kemi Badenoch has abandoned the sensible and pragmatic and reached for the populist playbook… announcing the Tories will make it illegal for doctors to strike. It’s got the whiff of Nigel about it.

Let’s take a pragmatic look.

If doctors are banned from striking, like police officers, Badenoch will have to amend 75,000 contracts of employment.

Resident doctors are employed under the NHS Terms and Conditions of Service, negotiated nationally. A unilateral change would probably be unlawful without consultation.

Even unenforceable unless:

  • Doctors individually agree to it, or
  • It is imposed through primary legislation overriding contract law and employment rights… even then…
  • Individual consultation would typically be required if it weren’t mandated by statute…

… if it wasn’t, expect an almighty row in the courts
… if it was, expect an almighty row in the courts.

The right to strike is protected under the Trade Union and Labour Relations (Consolidation) Act 1992. Doctors, as employees, are entitled to:

  • Join a union (the BMA),
  • Take protected industrial action after a legal ballot and notice.
  • Banning strikes would require primary legislation, amending or overriding parts of that Act.

There’s also the small matter (wait for it)…

… the UK is bound by the European Convention on Human Rights (Article 11 – freedom of association), which includes the right to strike as interpreted by the European Court of Human Rights…

… and…

… the risk of violating International Labour Organisation conventions the UK has signed, protecting workers’ rights to strike…

… a ban would probably be seen as disproportionate, oppressive and certainly politically volatile.

So go ahead, bring money and brace for:

  • Legal challenges from unions,
  • Mass resignations or refusal to sign amended contracts,
  • Escalation into broader NHS or public sector unrest, and
  • A severe political backlash, especially given current public sympathy for NHS staff.

If the Tories struggled through all that…

… the nurses could still bring the NHS to its knees. Ban nurses from striking? Have a go Kemi… but the radiographers or the laboratory staff could still deliver a knockout blow.

Ban all that and social care could still strike, clog up the system, overload admissions and grind it to a halt.

Public transport strikes could make it impossible for NHS people to get to work and industrial action in the coffee shops might induce an NHS-wide nervous breakdown!

Populism isn’t all it’s cracked up to be. Ban strikes across the whole public sector? Multiply the above by a hundred. Actually, make it a thousand.

If Badenoch wants to make a mark, she could use the existing Thatcher legislation…

Section 5 of the NHS and Community Care Act 1990, largely incorporated into later NHS legislation:

NHS Trusts shall have power to: ‘…employ staff on such terms and conditions as they think appropriate.’

Steer Trusts into local employment contracts.

Fragment the impact of national trade unions, allow Trust bosses to be creative with terms and conditions, create competition among employers and enjoy proper partnership employment.

Or, we could just focus on making the NHS a better employer.

Trusts really don’t have to bother making resident doctors feel at home. Some do, and it often pays off in later careers where associations are formed and people find their way back…

… but mostly RDs are seen as transient, disposable, their annual arrival a bit of a fag and in more recent times, junior doctors are difficult to deal with.

If conditions were mandated in a way that, without compliance, Trusts would not be allowed to employ RDs, there are some big wins to be had.

Gold standards:

  • 24/7 hot meals
  • Quiet, well-maintained and equipped on-call facilities
  • Free parking
  • Creche facilities
  • Easy access login to computing systems
  • Sympathetic rota systems

… all things that two years ago were on the agenda but Streeting hasn’t delivered.

Add to that:

  • Student debt relief in a golden handcuff deal
  • Kick the Royal Colleges up the backside and cut the costs of taking exams (subsidising it would only encourage RCs’ greed)
  • Equipment allowances
  • Reframe training to avoid brutal relocations and uncertainty

… all things that two years ago were on the agenda but Streeting hasn’t delivered.

Populism is pantomime; wins applause with fairy tales.

Pragmatism is the ugly sister; gets booed for bringing a mop instead of a miracle.

News and Comment from Roy Lilley
Contact Roy – please use this e-address roy.lilley@nhsmanagers.net
Reproduced at thetrainingnet.com by kind permission of Roy Lilley.

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