Hospitals may be sued if they hire locums to cover doctors' strike because of obscure employment legislation 

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Hospitals have been warned they risk breaking the law by hiring locums to cover striking doctors, it emerged yesterday.

Managers are trying to draft in extra medics to help out during the three unprecedented walk-outs planned for next month.

But NHS officials have told them that this is ‘unlawful’ because it breaches obscure employment legislation.

Some doctors planning to take action are urging their union to sue offending hospitals, claiming they would ‘spoil the strike’ by trying to cover shifts.

Demonstration: Thousands of doctors gathered around Westminster, central London in October to protest against changes to NHS contracts

But a patients’ group said last night that hospitals should be allowed to do ‘all they could’ to prevent patients dying during the disputes.

Later today the British Medical Association is expected to confirm that some 40,000 junior doctors will stage their first full strike since the NHS was formed in 1948.

Medics are at loggerheads with the Government over proposed changes to their contracts which mean more work during evenings and weekends for less money.

Over the last two weeks, junior doctors have been balloted over a day of action on December 1 when only emergency patients would be seen followed by two all-out strikes on December 8 and 16.

They are expected to vote overwhelmingly in support. Most hospitals are already making preparations by cancelling non-urgent operations and clinics, and recruiting extra staff to cover wards.

But many are unaware that the law prevents them from hiring locums from private agencies.

Guidelines sent out this month by NHS Employers, which represents health bosses, warns them that it is ‘unlawful’ to hire locums specifically to cover for striking doctors. The rule was set out in a 1973 Act and updated in 2003.

Joyce Robins, of the Patient Concern campaign group, said: ‘It’s bad news for patients. Most patients would expect to see that hospitals were doing all they could to cover doctors going on strike.

‘If there are people who might die as a result of this strike, hospitals should be allowed to hire locums. It’s very sad to see doctors willing to strike over money.’ In theory, groups of doctors could sue trusts if they could prove they had specifically hired locums to cover their shifts. One junior doctor said: ‘Anyone doing a locum (shift) on strike day will compromise us big time. Spoils strike.’

The law does allow hospitals to use consultants, nurses or volunteers to fill in for strikers. They can also hire locums to fill other vacancies if they would have been needed regardless of the walkout.

Some trusts are also offering non-striking junior medics extra cash to work additional shifts. Health Secretary Jeremy Hunt claims overall earnings will rise and has promised that doctors will not work more than 71 hours a week.

Tory MP Sarah Wollaston, chairman of the Health Select Committee, said: ‘A strike in December will be hugely disruptive. I really hope both parties take a step back and put patients first. This is perfectly possible to resolve.’

Will you be affected by the planned strikes? Please email doctorsonstrike@dailymail.co.uk