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Two legal challenges launched against junior doctors' contract

Two separate legal challenges have been made against the controversial junior doctors’ contract on the grounds that it discriminates against female and disabled doctors and that it was introduced without proper consultation.

Junior doctors are set to go on strike for 48 hours from 8am tomorrow after previous strikes failed to resolve the dispute.

The British Medical Association (BMA) have launched a judicial review of the contracts, saying that the government failed to meet its obligations under the Equality Act 2010 by not carrying out an equality impact assessment before health secretary Jeremy Hunt imposed the contract, and that the changes to pay will have a disproportionate impact on junior doctors with care responsibilities or disabilities.

Dr Johann Malawana, chair of the BMA junior doctors’ committee, said: “In trying to push through these changes, prior to imposing a new contract, the government failed to give proper consideration to the equalities impact this contract could have on junior doctors.

“For the sake of patients, doctors and the future of the NHS, the government must put politics to one side, lift the imposition and address, rather than ignore, junior doctors’ outstanding concerns.”

New contract could mean pay reductions for female and disabled doctors

The new contract will end automatic annual pay progression (AAAP), where doctors’ pay increases the longer they work for the NHS. Instead, doctors’ basic pay will increase after they are moved to the next level of responsibility.

The BMA says that this is unfair to women doctors, who are more likely to take maternity leave or work reduced hours in order to be the primary carer for children, and so take longer to reach a new post. Among doctors training less than full time, 80% are women.

Disabled doctors also sometimes work less than full time as a reasonable adjustment, again meaning that they will take longer to receive a pay increases under the new contract.

In their own equality analysis of the new contract, published last week, the Department of Health say: “While the new basic pay structure may operate in a manner that disadvantages those who attain greater levels of responsibility at a slower pace compared to the current arrangements we consider that it is clearly a proportionate means of meeting a legitimate aim, and therefore lawful.”

Jane Dacre, president of the Royal College of Physicians, and Clare Marx, president of the Royal College of Surgeons, said in a joint statement that this approach was ‘incompatible’ with the government’s commitment to promote women’s roles in the workplace.

Doctors working non-resident on-call patterns will also be paid only for the hours they are called upon to work, instead of being paid banding payments, and the number of hours eligible for increased antisocial hours payments will be reduced.

The BMA say that this will, again, disproportionately impact women doctors, who are less likely to work antisocial hours and more likely to need to pay for childcare if they do.

They also say that the three-year spell for transitional pay protection under the new contract is erroneously calculated and likely to disproportionately affect women and disabled people, and that removing pay protection for doctors changing speciality will foster discrimination and undermine good working relations.

Suzy Lishman, president of the Royal College of Pathologists, said: “I am also concerned that these changes might discourage women from entering medicine generally and entering traditionally female dominated specialties, like pathology, in particular. It is essential that opportunities in all specialties are open to all junior doctors, irrespective of their sex and parental status.”

A Department of Health spokesperson said that the legal challenge was “expensive for all parties and in the circumstances totally unwarranted.”

Legal challenge launches after online crowdfunder

Campaign group JustHealth have also launched a second judicial review, with legal fees paid by an online crowdfunder that raised £98,000 in three days, on the grounds that the contract imposition process did not allow time for adequate consultation.

Dr Marie-Estella McVeigh, from Just Health, said: “We feel this contract imposition has been rushed through without appropriate consideration and due process.

“There is no evidence that it will deliver a safer system or better quality care for our patients; it will instead exacerbate the staffing crisis we are already struggling with across the NHS.”

A further strike on 26 and 27 April will see the doctors withdrawing all services, including emergency care, for the first time.

(Image c. Ben Birchall from PA Wire)