NHS Employers has asked the government step in and “seek the view of the courts” to determine whether the Royal College of Nursing’s upcoming strike action is legal.
However, the RCN has warned that taking the union through the courts “would show utter contempt for nursing staff”.
“Bullying nurses and dragging us through the highest courts would not be a good look for government”
Pat Cullen
This comes as NHS Employers this week asked the RCN to reconsider its proposed strike dates, claiming that the last date in the upcoming wave of action was unlawful.
In a letter to the union, the organisation warned that the strike set on 2 May fell outside of the union’s six-month mandate for strike action.
However, the RCN defended its plans and announced that it would “strongly resist” any legal challenges which attempted to block its next round of industrial action.
Now, the chief executive of NHS Employers, Danny Mortimer, has called on the government to intervene on the matter, in a letter to health and social care secretary, Steve Barclay.
Mr Mortimer noted that NHS Employers had, since 19 April, been raising concerns with the RCN about the legality of its proposed strike dates.
The organisation, which represents NHS trusts, has argued that the RCN’s strike mandate came into force at midday on 2 November 2022 and therefore should end at midnight on Monday 1 May.
As a result, Mr Mortimer said the RCN could be asking members to “take strike action which does not enjoy legal protection”.
Conversely, the RCN says strike action legally can take place on the final day of a mandate, irrespective of the time.
In the letter, Mr Mortimer warned that NHS Employers had received legal advice that “if the notices for industrial action are incorrect in one respect, then they are incorrect in total”.
“I believe that conclusively establishing this position is in the interests of our staff and patients”
Danny Mortimer
This would mean that the entire period of upcoming action, due to take place from 8pm on 30 April to 8pm on 2 May, would be illegal, he said.
Mr Mortimer said: “I write to ask you to now intervene in this matter on behalf of relevant NHS organisations in England to seek the view of the courts as to whether the strike action planned for 30 April to 2 May 2023 is legal.
“I believe that conclusively establishing this position is in the interests of our staff and patients.”
Responding to the statement, Pat Cullen, the general secretary and chief executive of the RCN, said: “The decision of the NHS not to take this further is the right one but ministers need to decide whether to silence nurses.
“Bullying nurses and dragging us through the highest courts would not be a good look for government.
“It would show utter contempt for nursing staff.
“We will make the case for the legality of our action in all forums.”
The Department of Health and Social Care has been contacted for comment.