Closed consultation

MSLs in event of strike action: hospital services - public sector equality duty

Updated 16 October 2023

This was published under the 2022 to 2024 Sunak Conservative government

Applies to England, Scotland and Wales

Introduction

The general equality duty that is set out in the Equality Act 2010 requires public authorities, in the exercise of their functions, to have due regard to the need to:

• eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the act
• advance equality of opportunity between people who share a protected characteristic and those who do not
• foster good relations between people who share a protected characteristic and those who do not

Summary of the proposal

The Department of Health and Social Care (DHSC) is seeking views regarding the introduction of regulations in England, Scotland and Wales that, if introduced, would set minimum service levels (MSLs) on days when strike action is taking place for hospital services. DHSC is currently consulting on whether MSL regulations should be introduced, and if so, the level of the MSL.

These regulations would mean that an employer could issue a work notice requiring an individual to work during strike action, so that the level of service set out in the regulations can continue to be provided. If introduced, the regulations would be brought forward under the powers provided to the Secretary of State for Health and Social Care in the Strikes (Minimum Service Levels) Act 2023. The UK Government has already consulted on the application of MSLs for other sectors. The act amends the legal framework around industrial action by giving the government the power to set MSLs in certain services within key sectors, including health.

Currently, during strike action, employers try to negotiate with trade unions to see if they will agree to provide a certain level of cover for priority health services to protect life and health. These agreements, known as ‘derogations’, mean that certain staff members or groups of staff agree not to strike to provide the cover needed.

Derogations are entirely dependent on goodwill from unions and individual workers deciding whether to go on strike. During some strikes, in some places, derogations have been agreed in good time, but in others, unions have not agreed them until very late, have not agreed them in advance of the strike commencing or have not agreed them at all, which has particularly affected the provision of hospital services. This has resulted in staff not attending work when employers had understood they would do, and patient safety being put at risk while situations were resolved.

Intended aim of MSLs

The intention is to protect the public from the impacts of the strike action, specifically the protection of life and health. If introduced, these regulations would set out the detail of the minimum level of service required by law during strike action.

Effect on employers

NHS trusts and health boards which run hospitals and potentially their sub-contractors would be affected by the introduction of MSLs. If regulations are introduced, where a trade union gives notice of strike action, the employer can issue a ‘work notice’ to specify the persons required to work and the nature of the work required, in order to ensure the minimum service level, as set by the regulations, can be met.

The employer must consult the union or unions who have called strike action and have regard for their views as to the number of people to be identified in the work notice and the work they will be required to carry out on the strike day.

Employers are obligated not to discriminate against their employees under Part 5 (Work) of the Equality Act 2010 and need to comply with the public sector equality duty as part of the exercise of their public functions. Any decisions taken regarding which members of staff will be issued with work notices during any period of strike action would need to take account of equalities considerations, including those related to pregnancy and maternity.

Effect on employees

Employees who work in NHS hospitals will be affected by MSL regulations if these are introduced. Following notice of strike action by a trade union, the employer can choose to issue a work notice. If the employee has been notified by their employer that they have been named on a work notice and does not comply with it by going on strike, they would lose automatic protection from unfair dismissal. Employees would, therefore, face a significant impact from this proposal and would effectively be prevented from joining strike action if named on a work notice.

Effect on people accessing hospital services

Industrial action poses a risk to the smooth functioning of hospital services, leading to delays, restricted access to care, and increased burdens on staff and resources which potentially leads to risks to the life and health of hospital patients.

Patients in need of urgent and emergency care and who need hospital services are particularly vulnerable to service disruptions. Their conditions often require immediate intervention to prevent serious complications, emphasising the need for reliable care even during strikes. Examples include patients who need ongoing treatments such as dialysis, urgent chemotherapy and cardiac treatment, paediatric and obstetrics care. We propose that hospitals will treat people who require urgent or emergency treatment in hospital and people who are receiving hospital care and are not yet well enough or able to be discharged, during the period of industrial action as they would on a non-strike day.

Evidence

Sources of data for evidence of impact on protected characteristics

Part of the evidence for this equality impact assessment has been drawn from the Strikes (Minimum Service Levels) Bill impact assessment conducted by the Department for Business and Trade. This looked at wider impacts of the bill (now act) and included an assessment of the public sector equalities duty assessment (pdf, 554kb).

The NHS workforce figures used in this assessment are drawn from:

• for England, NHS workforce statistics - NHS England (as at May 2023 for the latest overall counts and March 2023 for the equality breakdowns)
• for Scotland, NHS Scotland workforce (pdf, 1.3mb) (as at March 2023 for overall counts and at March 2023 for equality breakdowns)
• for Wales, Staff directly employed by the NHS (as at March 2023 for overall counts and September 2022 for equality breakdowns)

Hospitals are predominantly staffed by women. In England 76% of all hospital staff were women, including 88% of nurses and 47% of doctors. In Scotland 79% of staff employed in NHS Scotland were women, including 90% of nurses and midwives. In Wales 77% of staff employed by NHS Wales were women, including 89% of nurses and midwives and 46% of doctors.

The data also shows that in England black and minority ethnic staff make up almost a quarter of the workforce overall (24.2% or 383,706 staff). In Scotland 2% of staff declared their ethnicity as Asian, 1% or black and 1% as other. Ethnicity is unknown or not declared for 28% of staff in Scotland. In Wales 1% of staff were from any black ethnic group; 1% were from mixed ethnic groups; and 1% were from other ethnic group.

In England, staff from ethnic minority groups (excluding white minorities) made up 49.9% of hospital and community health services (HCHS) doctors - 32.0% were Asian and 5.9% were black. Staff from ethnic minority groups made up 32.6% of nurses and health visitors - 14.5% were Asian and 10.7% were black. See NHS workforce ethnicity facts and figures - the data is based on the number of full and part time NHS staff.

Ambulance consultation

We have also drawn evidence from analysis of responses to the minimum service levels in event of strike action: ambulance services consultation which took place earlier this year. The consultation received 150 responses from ambulance and wider health worker organisations and the public. That consultation included the question “are there particular groups of people, such as (but not limited to) those with protected characteristics, who would particularly benefit or be negatively affected from the proposed minimum service levels for ambulance services?”

In answer to this question some organisations provided responses that may also be relevant to non-ambulance health services. For example, that people with protected characteristics under the Equality Act 2010 are overrepresented in the healthcare workforce and therefore, in their view, attempts to impose levels of minimum service in ambulance services could have a disproportionate and negative impact on the rights of these workers to participate in lawful industrial action.

However, there were also responses that considered that MSLs might be beneficial to those with protected characteristics, as they would be more likely to benefit those who need an ambulance, including anyone who has a disability or long-term health condition, is elderly, pregnant, or is otherwise vulnerable.

Overall staff numbers

As of May 2023, across hospital and community health services (HCHS) in England, the NHS employs 1,285,543 full time equivalent (FTE) staff. Of those 672,377 (52%) are professionally qualified clinical staff. Of these, there are:

• 134,008 doctors
• 334,690 nurses and health visitors
• 22,127 midwives
• 162,900 scientific, therapeutic and technical staff

As of March 2023, the NHS in Scotland directly employs 156,179 FTE staff. There are 15,310 medical and dental staff and 64,643 staff working in nursing and midwifery.

As of March 2023, the total number of FTE staff directly employed by the in Wales is 94,217 which includes 7,914 medical and dental staff and 37,223 nursing, midwifery and health visiting staff.

Analysis of impacts

Disability

Staff

In England, 5.4% of the NHS workforce declared a disability, including 2.7% of doctors and 4.9% of nurses. In Scotland, 1.4% of staff declared a disability (although for 38%, their status was either not declared or unrecorded). In Wales, 5% of staff declared a disability, including 2% of doctors and 4% of nurses.

We have not identified any direct or indirect impact of MSLs for disabled members of staff that could mean disabled staff could be disproportionately impacted by the introduction of minimum service levels in hospitals. However, we know that many disabled people make regular hospital visits and therefore, MSLs could benefit disabled staff enabling them to continue to have access hospital care.

Patients

Although we do not have data on the disability profile of patients, the key issues and inequalities experienced by disabled people are well-documented. For example, disabled people rely more on the NHS than the general population to keep them healthy, therefore were more deeply affected than other hospital users during the pandemic. Evidence suggests that disabled people wait longer for NHS treatment than those who aren’t disabled, making them feel deprioritised - see The King’s Fund blog on understanding the experience of disabled people in England. Disabled people who use hospital services may also feel more impacted by strikes because of the lack of certainty around appointments during strikes.

While noting disabled people experience poorer outcomes in terms of accessing health and hospital care services, MSLs could offer some positive effects; for example, by providing reassurance on levels of service and access to hospital services during strike action.

Sex

Staff

According to the 2021 Census, women and girls made up 30.4 million (51.0%) of the population of England and Wales, and men and boys made up 29.2 million (49.0%) - see Male and female populations ethnicity facts and figures. However, hospitals are predominantly staffed by women. In England, as of March 2023, 76% of all hospital staff were women, including 88% of nurses and 47% of doctors.

As of 31 March 2023, women accounted for 79% of staff employed in NHS Scotland, including 90% of nurses and midwives.

As of September 2022, 77% of staff employed by NHS Wales were women, including 89% of nurses and midwives and 46% of doctors.

This means it’s likely that more employees that are women than men may be subject to a work notice if MSLs are introduced, curtailing their ability to strike. We expect that MSLs will have the same impact on men and women, but because women are disproportionately represented in the workforce, more women may be impacted.

While we acknowledge that a considerably higher proportion of hospital staff that are women may be named in a work notice, we consider this to be justified given the high representation of women in the healthcare workforce and the policy intention of ensuring that people who need urgent or emergency treatment or people who are receiving hospital care and are not yet well enough or able to be discharged receive the same care in hospital as they would on a non-strike day.

Patients

Women accounted for 8.8 million (54.6%) of hospital-admitted patient care activity. Episodes for women aged 20 to 39 years were over 2.5 times those of men in the same age groups. Maternity services are responsible for a large proportion of admitted patient care activity for women in these age groups. See the hospital admitted patient care activity summary report for 2021 to 2022.

In some countries, for a variety of reasons, men are more likely to face greater health risks, however, in the UK the trend is reversed. A variety of studies has found that in many areas of healthcare women experience poorer outcomes in healthcare than men - see the House of Lords Library article on women’s health outcomes. Women live on average for longer than men, but a greater proportion of women spend more of their life in poor health. The introduction of MSLs may lead to better service levels on strike days which would benefit all patients regardless of gender.

Sexual orientation

3.5% of NHS staff in England have declared themselves as LGBT+ (lesbian, gay, bisexual and transgender). While it is a requirement for the NHS to routinely ask its employees about their sexual orientation, it is not a requirement for its service users. Research shows that lesbian, gay and bisexual people experience greater health inequalities compared to heterosexual people, such as being at higher risk of poor mental health or missing out on routine health screening. From our analysis, we have not identified any specific impact on staff or patients who share this protected characteristic in relation to the introduction on MSLs. However, MSLs could provide greater certainty for patients seeking support and advice during strike action.

Gender reassignment (including transgender)

There is no national standard for monitoring gender reassignment within the NHS to inform this. In the general population, 48,000 (0.10%) people identified as a transgender man, 48,000 (0.10%) identified as a transgender woman, 30,000 (0.06%) identified as non-binary and 18,000 (0.04%) declared a different gender identity - see the House of Commons Library report 2021 Census: what do we know about the LGBT+ population?.

Research shows that transgender people experience greater health inequalities, such as being at higher risk of poor mental health or missing out on routine health screening. For example, the National Gender Identity Clinical Network for Scotland is working to improve NHS service provision for gender services. We have considered the potential equalities impact of MSLs and have not identified any evidence of a particular impact on transgender people. However, MSLs could provide greater certainty for patients seeking support and advice during strike action.

Race

Staff

As of March 2023, over a quarter (26%) of NHS staff in England are Asian, black or another minority ethnicity. This group includes 48% of doctors and 34% of nurses - see NHS workforce ethnicity facts and figures for England.

In Scotland, 5% of staff are Asian, black or another minority ethnicity, though for a further 24% of staff, their ethnicity is either not disclosed or unrecorded, according to Scottish Government data.

In Wales, 1% of staff were from any black ethnic group; 1% were from mixed ethnic groups; and 1% were from other ethnic groups - see Welsh Government statistics on staff directly employed by the NHS: as at 30 September 2022.

By means of comparison, in the 2021 Census of the total population in England and Wales, Asian, Asian British or Asian Welsh accounted for 9.3% of the population and 4.2% identified as black, black British, black Welsh, Caribbean or African. Mixed or Multiple ethnic groups was 3.0% and as part of the white ethnic group, 74.4% (44.4 million) identified their ethnic group as ‘English, Welsh, Scottish, Northern Irish or British’.

Although the NHS has one of the most ethnically diverse workforces in the public sector, particularly in England, there are long-standing race inequalities issues in the NHS workforce - see The King’s Fund report Workforce race inequalities and inclusion in NHS providers. This includes a lack of ethnic minority representation at senior levels and ethnic minority staff being much more likely to report they have experienced discrimination at work than white staff.

Anecdotal evidence suggests that ethnic minority staff often feel uncomfortable about challenging management decisions or speaking up when they have concerns about patient or staff safety. See The King’s Fund blog, A hopeful moment? Addressing race inequalities in the NHS workforce. If named on a work notice, ethnic minority staff may feel that any concerns they have may not be taken into consideration. In England, as there is a higher proportion of ethnic minority staff in the workforce, this may result in a greater proportion of ethnic minority staff being named in a work notice, compared to the proportion of ethnic minority people in the general population.

Patients

In England, people from black and minority ethnic groups experience inequalities in health outcomes as well as inequalities in access to and experience of health services, compared to white groups - see the NHS Race and Health Observatory report Ethnic health inequalities and the NHS. This varies between ethnic groups and there is a lack of quality data and analysis. Ethnic minority people in Wales also experience disparities in mental health and wellbeing and access to mental healthcare, particularly among refugees and asylum seekers - see the Wales Centre for Public Policy report Improving race equality in Wales.

However, in Scotland most ethnic groups reported better health than the ‘white Scottish’ ethnic group. Conversely, across most ethnic groups, older men reported better health than older women. Older Indian, Pakistani and Bangladeshi women reported poor health, and considerably worse health than older men in these ethnic groups - see Public Health Scotland’s report on ethnic groups and migrants.

Research by the Institute of Fiscal Studies on the effects of doctor strikes on patient outcomes based on the impact of the 2016 strike action taken by doctors in training in England, concluded that patients treated in hospitals that were more exposed to the strike did not experience worse outcomes on average (that is, in-hospital mortality rates and re-admission rates) compared to hospitals that were more reliant on junior doctors.

However, they found some evidence (significant at the 10% threshold) that black patients experienced significantly higher re-admission rates compared to white patients when treated in more exposed hospitals. The authors found no significant difference in re-admission rates for other ethnic groups compared to white people and no difference was found by reviewing deprivation indicators. The authors did not identify a specific cause for this difference.

While it is not clear why black patients experienced higher re-admission rates compared to white patients following the 2016 junior doctors strikes, the introduction of minimum service levels may help ensure that differences do not materialise again, for example as they could help ensure that the essential services that continue during strikes are provided on a more consistent basis and with more typical staffing structures than had been the case during the 2016 strikes.

Age

Staff

In England, 31% of staff are aged under 35, with almost half (48%) aged 35 to 54 and one fifth (21%) aged 55 or older. For consultant grade doctors, almost a third of consultants are aged between 35 and 44, 42% are between the ages of 45 and 54, and a further 21% are aged between 55 to 64 years. See NHS England guidance on retaining doctors in late stage career.

In the NHS in Scotland, 27% of staff are aged under 35, 49% are aged between 35 and 54, and 24% are older than 54. Only 14% of doctors are aged over 55.

In Wales, 31% of staff are aged up to 35, 49% are aged 36 to 55 and 20% are older than 55. Only 13% of doctors are aged over 55.

The age data we have analysed suggests there is no evidence of a particular impact due to age from the introduction of MSLs. However, the introduction of MSLs may mean that employers require staff from particular grades or seniority to provide cover during strike action, which may correlate with age. This may mean that staff within certain age brackets are more likely to be named in a work notice.

Patients

Older people and those with long-term health conditions are more likely to use acute hospital services than other age groups. UK wide, people aged 65 and over account for over 40% of hospital admissions, occupy around two-thirds of hospital inpatient beds and are the most frequent users of health and social care services - see the British Geriatrics Society report Protecting the rights of older people to health and social care. The Office for National Statistics (ONS) also note that the UK has an ageing population - predicting that older populations are projected to grow by mid-2028.

The introduction of MSLs, if implemented, could mean that older people who require urgent or emergency hospital treatment or who already receiving hospital care and are not well enough or able to be discharged could expect to be treated in the same way as they would on a non-strike day.

Religion or belief

Staff

In England, 44% of staff declared their religion to be Christianity, 16% of staff declared another religion and 15% of staff declared that they were atheists. The remaining 25% chose either not to disclose their belief or it was unrecorded.

In Scotland, 32% of staff employed by NHS Scotland declared their religion as Christian, of which Roman Catholic and Church of Scotland made up of 16% and 10% respectively, and 28% of staff declared they follow no religion - see the Health and social care staff experience report 2021.

In the NHS Wales staff survey 2018 national report, 54% of staff said they were Christian (all denominations) 42% of staff said they had no religion, and the remainder were Buddhist, Muslim, Sikh, Jewish and Hindu or ‘any other religion’.

No direct or indirect impacts of the introduction of minimum service levels for hospitals have been identified on the grounds of religion or belief.

Patients

The 2021 Census asked people about their religion and across England and Wales, 46% of people identified as being Christian, 37% said they had no religion, 6% identified as Muslim, 2% identified as Hindu and around 2% identified as being Buddhist, Sikh, Jewish or of another religion. In Scotland, 53.8% of the population identify as Christian, nearly 36.7% said they had no religion and 1.4% identified as Muslim. The remainder did not state their religion.

Following adjustment for age, sex, broad ethnic group and region, in England and Wales in 2016 to 2018, a significantly lower percentage of those with no religion (64%) were estimated to be satisfied with their overall health compared with those identifying as Christian (68%), Hindu (72%) or Jewish (77%). For users of hospital services, a religious group that has an older age profile is more likely to have a higher percentage of people who report poor health compared with one with a younger age profile.

We have not identified a specific impact on patients or staff with religious beliefs from the introduction of MSLs.

Pregnancy and maternity

Staff

The institute of Fiscal Studies (IFS) found that for all NHS employees in England between January 2014 and March 2020, 17.1% of nurses and midwives and 17.7% of women doctors and dentists aged under 50 working in the NHS hospital and community sector had at least one spell of maternity leave - see Maternity and the labour supply of NHS doctors and nurses. Among these, many switched to working part time after returning from maternity leave. We have not found any evidence to suggest that the introduction of MSLs would impact more greatly on someone who is pregnant than someone who is not, as there is no evidence to suggest a pregnant member of staff is more or less likely to be named in a work notice during strike action.

Patients

Expectant mothers rely on regular maternity care to provide healthcare to both them and their unborn babies. Newborns, particularly premature infants or those born with medical complications, may require specialised neonatal care around the clock. Timely delivery of these services is crucial for the health outcomes of both mother and child.

The consultation proposal that hospitals will treat people who require urgent or emergency treatment in hospital and people who are receiving hospital care and are not yet well enough or able to be discharged, during the period of industrial action as they would on a non-strike day. Should MSLs be introduced, this would include hospital maternity services, ensuring women and babies can receive the usual necessary support including time-critical care, procedures and interventions alongside relevant technical and scientific support services. For women this means MSLs will provide continued access to hospital services during strike action.

Marriage and civil partnership

NHS figures in England reveal that 15% of the NHS workforce have not shared their marital status. The available data suggests there is little change in the marital status figures of the NHS workforce in recent years, with 50% being married or in a civil partnership, 30% single, and 5% divorced, separated or widowed.

After considering this, in terms of hospital usage, we have not identified anything that would suggest MSLs would impact on staff or patients who are not married or in a civil partnership more than those who are. Married people or people in civil partnerships may benefit from support to cope with certain conditions, which is unrelated to MSLs. A person’s marital status would not therefore impact on access to services during strike action.

Engagement and involvement

The Secretary of State for Health and Social Care has launched an 8-week consultation closing on 14 November 2023, to gather views on introducing minimum service levels in hospital services. In this consultation we ask specific questions about how people with protected characteristics could be impacted by MSLs. This will help to inform the decision on whether a minimum service level should be introduced for these services, and if so, where the level is set to be proportionate and fair. We will also hold round tables with affected and interested parties.

Summary of analysis

Sex

There are proportionately more women working in hospital settings in the NHS workforce when compared with the general population. On that basis, MSLs for hospital services are more likely to impact the ability of women to take strike action as the higher percentage of women staff means a higher proportion of women are likely to be named in a work notice compared to the proportion of women in the general population.

Race

There is a higher proportion of ethnic minority people in the NHS workforce in England when compared to the general population. On that basis, MSLs for hospital services are more likely to impact the ability for ethnic minority people in the NHS workforce in England as the higher percentage of ethnic minority staff means a higher proportion of ethnic minority staff are likely to be named in a work notice compared to the proportion of ethnic minority people in the general population.

By law, employers must make sure they do not unfairly discriminate in any aspect of work and must take steps to prevent discrimination. While we acknowledge that a higher proportion of women and ethnic minority hospital staff may be named in a work notice, we consider this to be justified where there is a higher representation of women or ethnic minority staff in the healthcare workforce. This is further justified by the the policy intention of ensuring that hospitals will treat people who require urgent or emergency treatment in hospital and people who are receiving hospital care and are not yet well enough or able to be discharged, during the period of industrial action as they would on a non-strike day.

Patients

For vulnerable groups, including the disabled and older people, MSLs could help lower the risk to patients because they bring more certainty of service, and will ensure those patients receive care in line with the minimum level of service.

Conclusion

Any decisions taken around which members of staff would be issued with work notices for any period of strike action would need to take account of equalities considerations. The policy aims to maintain a reasonable balance between the ability of hospital workers to strike with our obligation to protect the lives and health of the public.

Analysis of the equality impacts for hospital staff with protected characteristics has found that a higher proportion of women and ethnic minority NHS staff may be subject to a work notice, and so have their ability to strike restricted, when compared to the proportion of women or ethnic minority people in the general population.

Patients who need hospital services span the entire population. However, we expect older people and disabled people who rely on NHS services more than the general population, including those who work in hospital services themselves, may be more likely to benefit as these services can run more effectively due to MSLs during strike action.

Addressing the impact on equalities

We will analyse the responses we receive from the consultation to inform whether there are further impacts on equalities that we have not considered in this assessment.

Monitoring and evaluation

We will look into how we can monitor the policy and develop more detailed plans.