The High Court has imposed an injunction to prevent the second day of a forthcoming nurses strike in England, as requested by the UK government.
Lawyers acting for Steve Barclay, the health and social care secretary, successfully argued this morning (27 April) that the RCN lacked a mandate for its 48-hour strike scheduled to end at 8pm on Tuesday 2 May.
The judge accepted the argument that the mandate for the strike ran out half way through the planned action at midnight on 1 May, as it was 24 hours after the six-month period in which the strike could take place would have expired.
The interim declaration prompted Pat Cullen, the general secretary of the Royal College of Nursing (RCN), to condemn the government for “taking its own nurses to court”. She called it “the darkest day” in the long-running pay dispute.
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The Royal College of Nursing maintains that its strike – originally set to take place from 8pm (or the start of the night shift) on Sunday 30 April to 8pm (or the start of the night shift) on Tuesday 2 May 2023 – is lawful.
The union argued that the 2 May action fell within the timescales set out in the Explanatory Notes to the Trade Union Act 2016. It added that not one employer had intimated an intention to challenge the lawfulness of the action.
In an email to members sent the day before the ruling, RCN general secretary Pat Cullen wrote: “We expect that ministers could be successful in putting their full weight on the court and, if they win, we’ll be letting members know that the strike will end at midnight on Monday 1 May and not the following evening.”
She had added: “I’ve written a thorough witness statement that sets out our legal and political arguments on why the strike must go ahead.”
Mr Justice Linden told the hearing that nurses who went through with the strike on 2 May would not be protected by trades union legislation and their action would be “unlawful”.
He added that a witness statement provided by RCN general secretary Pat Cullen, who was not present inside the court, implied that “although she cannot bring herself to say it” the government’s interpretation of the law was “correct”.
The judge said the question was whether a six-month period within which the union could take strike action following a ballot ended at midnight on 1 May or midnight on 2 May.
“A six-month period, of which November 2 2022 is the first day, ends at midnight on May 1 2023,” the judge said.
Danny Mortimer, chief executive of NHS Employers, said the RCN should have resolved the issue of the strike’s legality sooner, particularly as NHS Employers had queried with the union the 2 May date for the mandate’s expiry. He said: “The RCN vigorously rejected our assertion and we were left with no choice but to ask the secretary of state to seek the view of the courts.”
Clarity has now been achieved, not least for RCN members, and the judge has confirmed the position we set out last week: any strike action occurring on May 2 would be illegal.
Last year, RCN members voted by 54% to 46% to reject a government offer of a 5% pay rise this year and a cash payment for 2022.
Healthcare workers who are Unison members accepted the government’s latest pay offer on 14 April, unlike RCN members.
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