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Headline

Junior doctors lose High Court legal challenge against health secretary

Comment

Judgement: The Judgment begins by dismissing claims from the SoS that the case had “no merit”, and emphasises that the grounds presented were “serious and properly arguable” and an issue of “wider public importance”. It was made clear that Jeremy Hunt is not imposing a contract on junior doctors, instead merely ‘recommending’ it to NHS employers: “One significant consequence of this litigation therefore has been that the Secretary of State has, properly and reasonably, taken the opportunity to put his position beyond doubt. Without granting declarations I can nonetheless, formally, record the position of the Secretary of State as articulated in these proceedings. First, the Secretary of State does not purport to exercise any statutory power that he may have to compel employers within the NHS to introduce the proposed terms and conditions. Second, he acknowledges, therefore, that in principle individual employers are free to negotiate different terms with employees…” Despite warnings from his own civil servants, and being aware that his language was causing confusion, the SoS continued to be unclear over the past year. “…the Minister was warned that the expressions “imposed” and “imposition” had given rise to difficulties. Paragraph [4] of the briefing stated as follows: 4. It is noted that the press has again today referred to the contract potentially being “imposed” by you. As you know, references to “imposition” have been deployed to assert “wrongly” that you are not aware of your legal powers. To avoid further complaints of this sort, we suggest that it is best when addressing this issue to spell out that the new contract will be introduced by you working together with NHS employers.” The SoS only provided clarity at the last moment, despite previous requests from doctors, politicians and the Justice for Health legal team. This has allowed him to avoid a legal ruling against him. “Shortly afterwards and essentially in the course of these expedited proceedings the Secretary of State has formally provided elaboration and clarification of his decision” His lawyers argued that junior doctors’ interpretation of parliamentary statements made by the SOS were unimportant and irrelevant. They claimed only the employers (as decision makers) interpretation should be considered. It was distressing for junior doctors and supporters in court to hear the argument presented in this way. The judge has made clear that this was not an acceptable argument, and that junior doctors and those affected by the SOS decision are legally entitled to clarity. “In the course of argument counsel for the Secretary of State argued that the addressees of the decision were essentially the employers since it was they who had the responsibility for taking decisions on employment matters at the local level and that was what the decision was really about. However, Mr Sheldon QC, for the Minister did (somewhat reluctantly) acknowledge that employees were also affected. In my view employees were manifestly a critical category of addressee of the decision.” The judge has dismissed the defence’s claim that junior doctors were fully aware the SoS was not imposing a contract, an argument that was met by audible gasps from those who were present in the High Court. “I accept the evidence of the junior doctors that they were in genuine doubt as to whether or not there was any negotiating daylight left following the Minister’s statement and, further, construed the Statement as entailing the Secretary of State compelling introduction or implementation of the contract and thereby eradicating further negotiating options.” The judge has pointed out that now there is clarity the SoS is not imposing a contract, there remains an opportunity for further negotiations. Employers have in principle the freedom to choose whether or not to adopt Hunt’s recommended contract. “[SOS] now accepts that there is in principle negotiating daylight which exists. But I have accepted the Secretary of State’s analysis by looking, with the obvious benefit of hindsight, at the full range of relevant documents, the most important of which would not have been available to the junior doctors prior to this litigation.”

Posted date

28 Sep 2016

Posted time

3:16pm

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