The law can trump the government, but common sense should prevail
by Francesca Conn, barrister
Many junior doctors are incensed by the recently published (March 2016) Equality Impact Assessment relating to their proposed new contract of employment. In that Equality Impact Assessment, the government’s own document, there is acknowledgment of the fact that the new contract may “disadvantage women working part-time” and repetition of the phrase that the contract is nevertheless “a proportionate means of achieving a legitimate aim”. For most doctors this sounds like a platitude at best, and otherwise barefaced acceptance that women with children may be driven out of the profession, as collateral damage.
Doctors may further consider that the publication of this document so late into the spectacular fall-out between the government and profession has assisted the government in mischaracterizing the reasons for the dispute. (Some believe that Mr Hunt has deliberately pushed into the media the idea that the bone of contention is Saturday pay in order to limit public support for the doctors.) But what has become increasingly apparent since publication of the Equality Impact Assessment is that in addition to the junior doctors’ moral or ethical challenges to the new contract, the primary legal challenge revolves around a key piece of legislation, The Equality Act 2010.
What makes the doctors’ challenge to the government’s new contract even more of a political hot potato is that The Equality Act 2010 derives from EU law: it is the UK’s piece of legislation to mirror and implement the four EU Equal Treatment Directives. And so it may be, to the horror of many conservative MPs and the Brexit camp, that the UK government’s implementation and execution of the new contract is defeated by EU principles of equality, and the law.
It cannot (yet) be said with certainty that the contract discriminates against women. The type of discrimination that is alleged is indirect sex discrimination, a notoriously difficult legal concept which is often not correctly identified. To paraphrase the law (the exact legal definition sounds like jargon), indirect sex discrimination may be found when conditions that appear neutral have a disproportionately adverse impact on a particular sex (in our case female doctors). But whether or not there is indeed discrimination at play depends upon whether the organisation/employer can justify those conditions to the satisfaction of the law.
It would appear from the Equality Impact Assessment that the government concedes that female doctors will be disproportionately adversely affected by the new contract in two main ways: firstly the extension of ordinary working hours from 7pm to 9pm on weekdays and 7am -5pm on Saturdays will make it harder for women with children to manage childcare; secondly the cessation of automatic pay progression will impact on the salaries of part-time workers or those who take time out of the career (the majority of whom are women).
When a disparate adverse impact is established, or conceded, the law goes on to look at the reason/need for the conditions and then the seriousness of the disparate impact that they cause. It then makes an evaluation as to whether the need is sufficient to outweigh the harm. “A proportionate means of achieving a legitimate aim” is indeed the legal test. If that defence is established to the court’s satisfaction, no discrimination is found to have occurred. The Equality Impact Assessment confidently asserts that the defence will be established, but a rich body of case law indicates that indirect sex discrimination cases are often very finely balanced.
Under the Equality Act 2010, public authorities such as the NHS are also subject to the Public Sector Equality Duty which requires them to “have due regard” (give proper thought) to the need to eliminate discrimination in all its forms and also to advance equality of opportunity. As to the question of equality of opportunity, it is a further slap in the face for female doctors that the equality analysis openly recognises that by ending time-served automatic pay progression the new contract will exacerbate the gender pay gap in the profession.
The BMA’s legal challenge is that the government has failed in its duty to have due regard to the Public Sector Equality Duty. That may be the case if Mr Hunt decided to go ahead with the new contract objectives before adequately considering the equalities impact. The BMA’s claim is a judicial review of Mr Hunt’s decision to impose the contract. If the claim succeeds the court will exercise its power to invalidate Mr Hunt’s decision.
Legal spectators may take pride in the role of the law in our democracy: that judicial review gives judges the power to overturn flawed government decisions. Legal spectators will further derive interest from any other legal actions that may follow (for example any clever legal argument as to whether or not indirect sex discrimination is established on the facts of the new contract) and from the inevitable legal appeals to ever more senior courts.
Political bystanders may delight in the trajectory of Mr Hunt’s career if his decision is quashed in the High Court, and the ramifications for the Conservative government if part of its election manifesto so publicly fails.
So Mr Hunt’s “nuclear option” of imposing the contract may or may not be found to be lawful. And the new contract may or may not constitute unlawful sex discrimination. The courts can (with time) finally settle those questions. But it is abundantly clear that the final legal position will not resolve the matter for junior doctors and in fact bring an end to the extraordinary crisis.
Junior doctors, male and female, are united in their challenge to the stated key aim of the new contract: a 7 day NHS providing the highest quality care every day of the week. They consider they are pawns in a political manifesto promise that is no more than a pipedream. Hospital Trusts, they argue, don’t have the staff and resources to adequately cover a 5 day week; their profession is already dangerously overstretched and exhausted.
Female doctors are outraged that the key objectives of the new contract will have a disproportionately adverse impact on them. The majority of junior doctors are women; it will be a travesty if women leave the profession in droves because the conditions of employment no longer offer adequate incentives to them to remain.
The law could trump Mr Hunt and scupper the government’s new contract for doctors, but the general public have to hope that common sense and reasonableness prevails. The government cannot allow a generation of doctors (trained at public expense) to become so demoralised that they vote with their feet, as some already have. So if the contract is toxic it should urgently be reviewed by the NHS and doctors, not by lawyers and the courts.