Healthcare leaders have written to the Royal College of Nursing suggesting its plans to extend strikes to midnight on 2 May are unlawful, it has emerged.
NHS Employers, which represents every hospital in the country, has written to the RCN’s warning that legally it must end its strike on 1 May.
In order to hold any strikes beyond this date there would need to be a new ballot of members, the organisation said.
Its legal warning was in response to the RCN’s plans to hold a 48-hour strike with no services exempt from 8pm on 30 April to 8pm on 2 May. Its latest strike comes after the union’s members voted to reject a five per cent pay rise offer from the government.
The RCN said any legal action by NHS Employers “will be forcefully resisted” and that it would seek to recover any legal costs.
In a statement Daniel Mortimer, the chief executive of NHS Employers, said: “The RCN ballot for industrial action ended at midday on 2nd November 2022 and allows the union six months to undertake any action approved by that ballot.
“NHS Employers has written to the RCN stating our view – on behalf of Trusts in England, and with clear legal advice – that the RCN’s mandate for industrial action ends at midnight on Monday 1st May. We have therefore asked the RCN to amend its guidance to its members regarding any action planned for Tuesday 2nd May 2023. We are in ongoing exchanges with the RCN on this matter.”
According to The Guardian, the letter from NHS Employers could result in a high-court action against the RCN. NHS Employers declined to comment when asked whether it had threatened the union with formal legal action and declined to share its letter.
The RCN said in a repsonse to NHS Employer’s letter: “I would refer you to RJB Mining (UK) Limited v National Union of Mineworkers [1995] IRLR 556. This was a case relating to the provisions as they were prior to 1 March 2017 when unions were required to take action within 4 weeks of the date of the ballot. In that matter, the last date of the ballot was 16 May and 4 weeks later was 12 June. The union called strike action to commence at midnight on 12/13 June.
“The Court of Appeal held the 4 week period in section 234 (as it was then) finished at the end of 12 June i.e. the final day. Furthermore, the law does not recognise part of a day and a day extends until its last moment namely midnight.
“That being the position, I trust you agree that our strike action on 2 May 2023 until 8pm or the start of the night shift does have the support of the ballot and is lawful. However, and if any employers do apply for an injunction on this basis, it will be forcefully resisted by our leading Counsel retained on this matter and we would also seek to recover our costs if any such application is unsuccessful which I believe it would be.”
Meanwhile, in a fresh plea, NHS leaders urged the RCN to allow some exemptions to the strikes next month warning safety of vulnerable patients is at risk.
Sean Duggan, the chief executive of the NHS Confederation’s mental health network, said: “We urge the RCN to reconsider its stance on derogations in this latest round of strike action.
“In particular, high secure and inpatient mental health services, as well as emergency departments and critical care must be considered as life and limb services and therefore nursing provision must be granted in these areas.
“Unless these areas are made exempt by the RCN for the upcoming strikes, as they have been up until this point, patient safety will be put at direct risk.”
An RCN spokesman said: “Nursing staff don’t want to go on strike.
“We have given the NHS and Government two weeks to plan for this and it’s the responsibility of the employer to maintain safe staffing levels.
“There will be nurses working those days but we are asking the NHS to run what services it can safely without our members while they take legal action.
“We know this is a difficult task and there are exceptional circumstances where we would call it off in any hospital. But we must remember employers already make difficult staffing arrangements work on most days.”
