NHS Employers has told the Royal College of Nursing it believes its strike action planned for 2 May is not legal, it has confirmed.
After its members voted against a deal agreed between Agenda for Change unions and government, the RCN last week announced “a round-the-clock 48-hour strike without derogations from 8pm on 30 April to 8pm on 2 May”.
Union ballots for industrial action give them a six-month legal mandate to hold that action.
NHS Employers, which acts for NHS organisations on national workforce issues, and is part of the NHS Confederation, has stated that it believes the RCN’s current mandate – from a vote held last year – is exhausted at the end of 1 May.
Employers CEO Danny Mortimer said in a statement: “The RCN ballot for industrial action ended at midday on 2 November 2022 and allows the union six months to undertake any action approved by that ballot.
“NHS Employers has written to the RCN stating our view – on behalf of trusts in England, and with clear legal advice – that the RCN’s mandate for industrial action ends at midnight on Monday 1 May.
“We have therefore asked the RCN to amend its guidance to its members regarding any action planned for Tuesday 2nd May 2023. We are in ongoing exchanges with the RCN on this matter.”
As first reported by the Guardian, the RCN is contesting this and has issued excerpts from a response it has sent to NHS Employers.
This states: “I would refer you to RJB Mining (UK) Limited v National Union of Mineworkers  IRLR 556. This was a case relating to the provisions as they were prior to 1 March 2017 when unions were required to take action within 4 weeks of the date of the ballot. In that matter the last date of the ballot was 16 May and 4 weeks later was 12 June. The union called strike action to commence at midnight on 12/13 June. The Court of Appeal held the 4 week period in section 234 (as it was then) finished at the end of 12 June ie the final day. Furthermore, the law does not recognise part of a day and a day extends until its last moment, namely midnight.
“That being the position, I trust you agree that our strike action on 2 May 2023 until 8pm or the start of the night shift does have the support of the ballot and is lawful.
“However, and if any employers do apply for an injunction on this basis, it will be forcefully resisted by our leading counsel retained on this matter and we would also seek to recover our costs if any such application is unsuccessful, which I believe it would be.”