Resident Doctor strikes show the need for industrial relations reform

When Labour was in opposition, a common attack line on the Conservative government was that strikes would not happen under a Labour government because Labour would negotiate. The onset of doctors’ strike action both demonstrates the scale of the damage done to industrial relations by the previous government but also indicates that Labour’s negotiating skills leave something to be desired.

The origins of the dispute are that at the 2021 Annual Representatives Meeting the BMA voted to achieve pay restoration for resident doctors by 2026. Although treated with varying degrees of sincerity within the BMA, it is a useful thing to point to when pushing for salary increases. This was representative of a movement within the BMA towards industrial militancy after all other avenues of negotiation appeared to have failed; indeed, the previous government only entered negotiations after industrial action had taken place.

Labour thought it had settled this dispute when it agreed what has since been erroneously reported as a 28% pay award. However, this did not reckon with the extent to which the previous government had driven pay downwards, using the monopsony power of the NHS and a rigged pay review body system in which the government set the financial constraints. Equally, reckless increases in the minimum wage without accompanying strengthening of collective bargaining has caused an erosion of previous differentials. This approach caused a movement away from professional consciousness and towards wage consciousness, a shift Labour has subsequently compounded this with its own actions.

The class politics of this dispute may be nuanced – one simplified way of casting it would be that a reforming social-democratic government is being undermined by the sectional interests of a middle-class institution – but the political challenges and consequences are not. 

At the time of agreeing last year’s deal, the BMA had made it clear that if the pay review body recommendations were not made at the start of the financial year, then it would register a trade dispute and move to a ballot. Given the gap between the governments initial submission in December (2.8%) and the PRB’s final recommendation, of 4% and a consolidated £750 in May, it is probable that the PRB recommendations were released late because of negotiations with the Treasury for more funds; if this is the case then it is a reasonable excuse and it is understandable why the government may feel aggrieved at the BMA moving to ballot.

However, it is because of past experience and the general lack of trust and insecurity in its own position that means the BMA has reached for the industrial action lever so quickly, since industrial action is the only thing that has been proven to work in combating pay erosion over the last 15 years. Ultimately, there is no trust in the state to deliver as it has not done so previously until it has been compelled to by strikes. The only way for Labour to convince the BMA otherwise would be to demonstrate a clear willingness to act on their concerns. Unfortunately, it has yet to do so.

Some in Labour may feel they have already delivered, pointing to the pay award that settled last year’s industrial action, to the above-inflation pay award this pay round, and to the openness communicated by the government to increasing training places and addressing exam fees.

However, last years pay award was a decision pre-made for Labour by the political reality they inherited. Moreover, Labour did not, as is often referenced, agree to a 22% pay award: it added 4.05% to the 2023-24 pay scale (that had already been increased under the previous government as a response to the industrial action) and agreed to the (historically speaking) high recommendation from an unshackled PRB for the 2024-2025 pay round. Such investment is not to be scoffed at, as demonstrated by the BMA banking the deal, but it is not the same as entering power and immediately authorising an award of 22%.

Furthermore, although the pay award was above CPI inflation, it was not above RPI inflation for all resident doctor grades (the measure of inflation was left intentionally vague in last year’s deal, though RPI is used to calculate doctors’ student loan repayments). Equally, the government made noises about addressing exam fees and training bottlenecks at the time of last year’s pay deal; the lack of tangible progress since makes it unsurprising that a refrain of this offer was not enough to postpone strikes.

Perhaps most importantly, it is always unlikely that strikes will be postponed as the structure of existing labour legislation makes this too far costly for a union. This is because the current legislation, in particular the 2016 Trade Union Act, is not meant to facilitate industrial cooperation but to enforce worker subjugation. Firstly, it tries to prevent industrial action by requiring all ballots have to have at least 50% turnout (with 40% voting yes in key public sectors). Secondly it tries to make any successful ballot as arduous as possible by requiring unions to provide details of how many members and in which grades it will be balloting at each workplace a full week before a ballot has opened; it then requires that two weeks' notice is given to the employer before any action is taken.

This is an approach to preventing strikes that works until it does not: although it imposes numerous hurdles that are potentially difficult to clear, if and when the hurdles are cleared then strike action becomes almost inevitable. For the union, overcoming such legal hurdles requires a lot of organisation and agitation amongst its membership which can then be challenging to arrest. It also means that balloting takes a lot of time, so has to be instigated when negotiations could still take place if a union wishes to be able to take timely and effective action. This can inflame the situation with employers, who often fail to appreciate the nuances of this legislation. To compound this, having to give two weeks’ notice of industrial action makes calling off strikes at the last minute both extremely costly and a tactical risk for any union.

In addition, this existing legislation also creates an incentive for an employer to wait and see if a ballot is successful before deciding whether to enter into negotiations – often resulting in a further waste of time that could have been used for meaningful negotiation. This is compounded when the employer is a government that, for understandable reasons, will not want to appear being held hostage to strikes and will want to give the impression that it is in control of the situation. Unfortunately, this has resulted in the BMA (and other unions) concluding that a succesful strike ballot is the only way to get an employer to engage in meaningful negotiations; and once there is a successful ballot, there is likely to be a strike. Thus, in the current industrial climate using this legislative framework increasingly resembles a game of Russian roulette.

Perhaps this would have been different if the government had already repealed the 2016 Act and introduced its promised electronic and workplace balloting. Unfortunately, however, it has yet to do so. Even then, it has only proposed changing the notice for industrial action from 14 days to 10 days and tweaking the information that must be provided to an employer while keeping the obligation to provide one week’s notice of moving to ballot. All this will do is slightly disadvantage the employer while keeping the same procedural issues that keep industrial action locked in. This is a flawed approach. The 2016 Act was introduced to make large scale strikes effectively impossible, and when this failed the Conservatives moved to trying to ban strikes all together. Essentially, it was legislation designed for a more placid industrial climate. That climate, however, no longer exists, and unions are better at gaming ballots.

It does not look as though things will improve much in the immediate future. Although the government has launched a media charm offensive on resident doctors, this is an approach based on exclusion - in this case, an attempt to isolate the Resident Doctors Committee from the rest of the membership. Maybe it will work, maybe it will not (we will know more when data about strike observance can be analysed) but it is not a constructive approach to industrial relations. (More constructive would be to explore how to increase democratic participation in trade unions – certainly, this would make sense if the government’s concern is genuinely with a militant minority exploiting members’ trust and loyalty.)

As well as this, the instruction to hospital trusts not to cancel non-urgent medical care during strike action is particularly abrasive – not say an interesting exercise in arithmetic given that it is attempting to do the same level of work with fewer people. This sort of confrontation will only become more acute when NHS England is completely phased out, meaning there will be no buffer between the Department of Health and the industrial front line. In the current dispute, the best that that public can hope for is a compromise that prevents further strikes by allowing both sides to save face.

Longterm, the government needs the structure of its relationship with the BMA to prevent this from happening again. So, what could it do?

Firstly, the government needs to change the mechanisms by which this relationship is administered and take a leap of faith in favour of a cooperative approach built on direct dialogue and greater risk. This means removing the pay review body and moving to direct collective bargaining, instead of the bastardised version that currently exists. The government may not want to do this, since the purpose of pay review bodies is to take the sting out of collective bargaining and avoid putting the government in the confrontational position of an employer not increasing wages. However, events mean that that is no longer a realistic option: moving to proper collective bargaining is now the only way to establish a healthy working relationship between government and union, and to break free of a pay review timetable that currently serves only as a count-down to industrial action.

Secondly, the government needs to remove legal obstacles to strikes such as turnout thresholds so that strike action is less of a significant event for trade unions – one that becomes more costly to withdraw from the closer it is. The government may fear that this will make strikes more frequent; however, the days of the provisions of the 2016 Act reliably preventing industrial action are gone. The current legislative framework did not prevent the most turbulent period of industrial action since the 1980s, in fact, as per above, it encouraged this. Furthermore, if a strike ballot has a low turnout, it can reasonably be assumed that the strike itself will not have high observance; if it does have a high turnout then it would have cleared the turnout hurdle anyway.

Lastly, the government needs to be able to demonstrate tangible progress on improving doctors' terms and condition of employment. So far, it has done the easy things of indefinitely scrapping the medical apprentice programme and changing the name of Physician Associates to Physician Assistants, but it has yet to meaningfully engage with either contract reform or with the lack of available training places for doctors. The latter in particular has resulted in career stagnation, which has in turn made many doctors more acutely conscious of where their pay is now relative to where they would previously have expected it to have been however many years after qualifying.

Although the BMA may be the most immediate and pertinent example of the battered state of industrial relations in the public sector, it is not the only one, and many of the key issues are consistent across the public sector workforce. Labour does have a genuinely different approach to industrial relations than the Conservatives did: it is willing to treat strike action as legitimate, and refrains from threatening to ban it. However, it is evident that the current state machinery and workforce are not up to the task of administering effective industrial relations in a febrile socio-economic climate. As long as the government refuses to reform these structures, it will be bound to a cycle of periodic conflict across the public sector. Although strike fatigue may come to the governments rescue in this particular dispute, it should be a wake-up call for the government: saying ‘trust us, we’re Labour’ while not enacting reform is not a viable long-term strategy to improving industrial relations.

Alex Maguire is a trade union officer.