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Today, the High Court ruled that it would be illegal for the Royal College of Nursing (RCN) to strike on 2nd May, as its six-month mandate for strike action would have lapsed.
The judge said the outcome was “inevitable” and the union showed “a high degree of unreasonableness” by refusing to negotiate with the government instead of taking the matter to court.
The RCN has been ordered to pay for the costs of the hearing and the union has agreed to stop all strike action at midnight on 1st May.
Pat Cullen, RCN General Secretary and Chief Executive, said: “The full weight of government gave ministers this victory over nursing staff. It is the darkest day of this dispute so far – the government taking its own nurses through the courts in bitterness at their simple expectation of a better pay deal.”
“Nursing staff will be angered but not crushed by today’s interim order. It may even make them more determined to vote in next month’s re-ballot for a further six months of action. Nobody wants strikes until Christmas – we should be in the negotiating room, not the courtroom today.
By “dragging” nurses to court, the government has “lost nursing and they’ve lost the public,” Ms Cullen added. “They’ve taken the most trusted profession through the courts, by the least trusted people.”
Why are nurses striking again?
The upcoming strike action was planned by the RCN after members of the union narrowly voted to reject the government’s pay offer.
In total, 61% of eligible RCN members voted in the ballot, with 54% voting to reject the pay offer and 46% voting to accept it. The pay offer would have seen nurses receive a non-consolidated award of 2% of an individuals’ salary for 2022/23, a 5% consolidated increase in pay for 2023/24 and a backlog bonus of at least £1,250 per person.
However, Ms Cullen said the offer was “simply not enough” to prevent nurses from returning to the picket line, and the RCN said it would strike again from 8pm on 30th April to 8pm on 2nd May.
For the first time, the strike is due to involve nursing staff working in emergency departments, intensive care units, cancer care and other services that were previously exempt.
Why was the strike on 2nd May deemed illegal?
A mandate for strike action lasts for six months from the point a statutory industrial action ballot closes. The RCN’s ballot closed at midday on 2nd November, which they argue allows them to strike until midnight on 2nd May, but the High Court says it only allows them to strike until midnight on 1st May.
The case was bought to court after NHS Employers wrote to Mr Barclay with concerns that the strike could be unlawful. In a statement, NHS Employers chief executive Danny Mortimer said: “Given the concern that the RCN may be asking its members to take strike action which does not enjoy legal protection, I have this afternoon written to the Secretary of State for Health and Social Care asking him to intervene and to seek the view of the courts as to whether the notices of action issued to relevant NHS organisations for 30th April to 2nd May 2023 fall within the law governing industrial action.”
The NHS and the government asked the RCN to call off their planned action so that there was no reason to take the matter to court. However, the RCN rejected this offer, and Mr Barclay said he had “been left with no choice” but to pursue legal action and ask the courts to declare that the RCN’s strike on 2nd May to be unlawful.
“The government firmly believes in the right to strike, but it is vital that any industrial action is lawful and I have no choice but to take action. Strike action with no national exemptions agreed, including for emergency and cancer care, will also put patient safety at risk.
“This legal action also seeks to protect nurses who could otherwise be asked to take part in unlawful activity that could in turn put their professional registration at risk and would breach the requirements set out in the nursing code of conduct,” he said.
NHS Employers does not have legal standing to take forward this action on behalf of NHS Trusts – this is why it asked the Secretary of State to intervene.
RCN asked to agree derogations
Ms Cullen has assured members that the RCN would never ask them to take strike action that was unlawful, and they have called off all strike action on 2nd May. However, the union will still strike on 30th April and 1st May.
Mr Barclay is now calling on the RCN to “do the right thing by patients” and agree derogations for their strike action on the remaining strike days. The NHS Confederation has joined these calls, saying the absence of any exemptions to its planned strikes will put patient care in a “precarious position”.
“NHS leaders are worried that this action could lead to hospital wards becoming overwhelmed during the strike days and could even put some people off from seeking the care they need. We are calling on the RCN to reinstate these vital derogations without delay,” said the NHS Confederation’s chief executive, Matthew Taylor.
Will there be more strikes from nursing unions?
The RCN says it will ballot its members again in the coming weeks, for a new strike mandate that covers both the 2022-23 and 2023-24 pay years.
Whether there will be further strike action from other unions such as GMB and UNITE is yet to be determined, with the both ballots due to close tomorrow (28th April).