EHRC document to be presented to the UN, seen exclusively by the Guardian, says that new contract discriminates against female doctors

The new contract ministers plan to force on NHS junior doctors discriminates against female medics and is potentially illegal, Britain’s equality watchdog has told the government.

Female doctors, including those who take time off to have children, go part-time or act as carers are at risk of earning less than male counterparts and would face “inferior conditions of work” and unfair “differential treatment”.

BMA launches legal action against junior doctors' contract Read more

The Equality and Human Rights Commission (EHRC) has detailed a number of objections to the terms and conditions as part of a wider evaluation for the UN of the government’s human rights record, a copy of which it has given to the Guardian.

Its intervention raises questions about whether the contract as currently set out, which is already the subject of two high court legal challenges, can be enforced.

The EHRC’s document says Jeremy Hunt’s Department of Health “does not appear to have explicitly considered the impact of the contract on the right to just and favourable working conditions under Article 7 [of the UN’s] International Covenant on Economic, Cultural and Social Rights, which the EHRC would consider to be good practice”.

Under that covenant “the UK is obliged to ensure remuneration which guarantees conditions of work to women that are not inferior to those enjoyed by men.

“The EHRC is concerned that the UK government’s analysis [of the equality issued raised by the contract] suggests an adverse impact of the contract on groups that disproportionately include women, such as those who take time away from work for maternity leave and caring responsibilities. This may indicate that women junior doctors will have inferior conditions of work under the new contract, which would be inconsistent with Article 7 ICESCR, unless it can be justified”, the document states.

The DH’s equality impact assessment roused controversy last month when it admitted that the contract would disproportionately disadvantage women, but said that was “a proportionate means of achieving a legitimate aim”.

Junior doctors' strike has become the mother of all deadlocks Read more

The ECHR rejects Hunt’s argument that the contract, which will increase junior doctoprs’ basic pay by 13.5%, is the best on offer because it has to cost the NHS no more money than at present. The UN’s view is that “lack of available resources does not constitute an objective and reasonable justification for a failure to remove differential treatment”, the watchdog’s submission adds.

Dr Johann Malawana, chair of the junior doctors committee at the British Medical Association, which is challenging the lawfulness of the contract on equality grounds, said: “This reinforces the government’s own admission that this contract is unfair and discriminates against women.

“These findings by the human rights watchdog confirm that women would be disadvantaged under the contract the government is trying to impose.

“This total disregard for equality and fairness is frankly appalling and is the basis of a legal challenge being brought by the BMA against the government.”

After a second day on picket lines outside 150 hospitals across England, junior doctors and other NHS staff are debating what form the next stage of their camapign against the contract should take.

The BMA’s junior doctors committee will meet on Saturday 7 May to agree what action they will take. Some junior doctors believe an indefinite all-out strike will force Hunt to talk again and make further concessions, while others back a mass resignation of junior doctors, which would exacerbate NHS medical understaffing.

Just under four in five of junior doctors who were due to be on duty instead took part in the second part of the two-day withdrawal of even emergency care, the same proportion as on Tuesday, according to official figures released by NHS England.

It also confirmed that hospitals had all coped well with the absence of so many doctors and that none had come under such pressure that it had asked striking medics to come back inside to help.

“We’re not going to pretend the last two days have been easy but the NHS has remained open to business for patients”, said Dr Anne Rainsberry, NHS England’s national incident director.

Extensive planning for the walkouts, which saw consultants yet again covering gaps in rotas left by striking junior colleagues, meant that “the health service has coped admirably”, she added.

A junior doctor working in gastroenterology in London, who asked to remain anonymous, said there should now be an indefinite strike but with emergency cover still being provided. He added: “My own mind is clear: if the contract passes, myself and my (doctor) partner will leave England, either for Scotland or Australia.”

A consultant working in London who, during the strike, was the sole doctor covering the workload of eight doctors normally on duty in his department, also supported an indefinite strike.

Other junior doctors and healthcare professionals, meanwhile, back the BMA’s desire for Hunt to reopen talks.

Zoe Norris, a GP in Hull, said: “The government must remove imposition of the contract and return to the table with the BMA. We are watching and know if this is how they treat one of the most essential groups in the NHS, we will all be next.”

Responding to the EHRC the Department of Health said: “This is nonsense and misunderstands the government’s obligations. Under this contract for the first time all doctors will get equal pay for equal work, rather than being paid for time served, to create a genuinely level playing field for men and women.

“What’s more, we have fully considered the Equality Act under the Secretary of State’s duties and the BMA’s own lawyers have advised that there is nothing unlawful in the new contract, which was 90% agreed with them anyway.”

