But employment lawyers suggest requirements in trade union bill could significantly limit future action by key services

Junior doctors have escalated their dispute with the government over new contracts by announcing a two-day, all-out strike – the first time in the organisation’s history that NHS employees have withdrawn all labour.

Under the terms of the action announced by the British Medical Association (BMA), which represents the NHS’s junior doctors, no services, including emergency care, will be provided on 26 and 27 April.

The Department of Health has called the action “desperate and irresponsible” and accused junior doctors of “putting patients in harm’s way”. An additional 48-hour strike, affecting the provision of emergency care only, is planned from 6-8 April.

Employment lawyers said the action, while unprecedented, was legal – but also pointed to forthcoming changes to the law that would make it trickier for such strikes to go ahead, and the potential for the government to legislate specifically against industrial action among key public services.

In a statement, the BMA pointed out that emergency cover would still be provided by more senior medics: “It is important to remember that it is only junior doctors who are taking industrial action, and so other doctors and healthcare staff will attend work as normal. Since the BMA has given employers the required seven days’ notice of this action, it is the responsibility of the employer to ensure a service is provided.”

Dr Johann Malawana, junior doctor committee chair of the BMA, said: “In refusing to lift imposition and listen to outstanding concerns, the government will bear direct responsibility for the first full walkout of doctors in this country.

“We want to end this dispute through talks, but the government is making this impossible; it is flatly refusing to engage with junior doctors, has done nothing to halt industrial action and is wilfully ignoring the mounting chorus of concerns over its plans coming from doctors, patients and senior NHS managers. Faced with this reality, what else can junior doctors do?”

Anna McCaffrey, senior associate in employment, pensions and mobility at Taylor Wessing, said the new action appeared to be legally sound, leaving the NHS no recourse to an injunction to prevent the walkout. But she suggested that there was potential for the government to legislate specifically against NHS industrial action in response to the current dispute: “It would be a really drastic measure for the NHS to stop its employees striking in the future, but it’s also not impossible. The government could pass new legislation stating the impact of NHS workers’ strike action on patient care, for instance.”

McCaffrey pointed to the trade union bill, which is currently being read in the House of Lords and is expected to reach the statute books before the summer. By imposing a higher threshold on turnout – at least 50 per cent of those eligible to ballot will have to vote, and the majority of them will have to be in favour of a strike – “it could put people off striking altogether”, she said. And the law would be likely to affect key public services, since they have more union members by volume than other organisations.