NHS Providers legal partner, Hempsons, give their perspective on the impact of system working on the NHS workforce, and sheds light on the legal considerations trusts and other system partners should give to system working.
These case studies illustrate a range of ways in which trusts and their partners can move towards a more integrated and collaborative system of working. As well as the cultural and engagement issues referred to in the case studies, there are legal challenges associated with the move to new ways of working.
Some of these challenges arise out the structure of the NHS – system-wide organisations such as STPs and ICSs have no legal identity. They cannot directly employ staff and so other workable arrangements need to be found, whether that is using a ‘host’ employer or otherwise. Some of the challenges are more traditional and common across all sectors – the need to change terms and conditions, make redundancies, manage secondments etc. This is an overview of the main employment law challenges facing organisations attempting to implement better system working of the sort set out in the case studies.
Changing terms and conditions
Existing employment contracts may have a degree of flexibility built into them and employers should always review existing flexibilities before considering changing them. Changing terms and conditions of employment except by agreement is not to be undertaken lightly given the potential for litigation challenge and risk. In order to make binding changes to employment contract terms employers have the following options:
- obtain the express agreement (ideally in writing) of the employee to the change
- reach agreement on a collective basis with a recognised trade union
- impose the change unilaterally (if the employee does not object this would amount
to an acceptance of the change)
- dismiss and re-engage (offer continued employment on the new contractual terms).
In cases where an employer proposes to dismiss 20 or more employees within any 90-day period, there is an obligation to consult collectively with appropriate representatives (for NHS employers that would usually be recognised trade unions) and this would apply if an employer chose to dismiss and re-engage employees.
If an employer fails to adequately consult with appropriate representatives, they can face claims for a 'protective award' of up to 90 days' pay for each affected employee.
Changing terms and conditions after a TUPE (transfer of undertakings [protection of employment] regulations 2006) transfer can be difficult to do lawfully. 'Harmonisation' of terms and conditions, which is often desirable from an employer’s perspective, goes against the purpose of TUPE and is often the subject of challenge (both internally and through litigation).
Where responsibility for providing a service transfers from one provider to another there is the likelihood that a transfer under TUPE takes place.
The purpose of TUPE is to protect employees against unlawful changes to their terms and conditions and against dismissal connected to a transfer.
A move towards more collaborative, systems working can, sometimes inadvertently, create TUPE transfers of employees. A clear understanding of when collaboratively working might lead to a TUPE transfer is essential if employers are to avoid litigation from affected employees. One of the key questions to ask when working more collaboratively is “Who is now responsible for providing this service?”. If responsibility is going to change, employers should consider whether there is going to be a TUPE transfer.
There are practical ways of managing transfers to deliver the required outcome, but employers can only protect themselves (and employees) if they know that there may, technically, be a TUPE transfer and plan for it. There are information and consultation obligations on employers, so it is crucial that these are planned for and implemented properly. The financial consequences of non-compliance with the information and consultation obligations can be very serious. Similarly, as with the failure to consult about collective redundancies, tribunals can award protective awards to affected employees of up to 13 weeks’ pay per employee.
Employers should be particularly aware of the potential TUPE implications where they move to a ‘host’ employer, shared employment model or where multi-disciplinary teams from several employers are created.
Changing terms and conditions, when connected with a TUPE transfer, can be particularly difficult with few lawful exceptions for employers. Employers are always wise to seek legal advice before they undertake such changes.
Often there may be a need to temporarily transfer an employee into a new work environment and a secondment arrangement might be the best way to do that effectively. As long as the employee, the employer and the new ‘host’ organisation are agreed that it is a good idea the practical implementation is usually not difficult but it is important that all parties understand how the arrangement will work not just when it is going well but also when things go wrong (e.g. disciplinary or capability concerns, liability for claims etc).
Staff 'passport' arrangements
Several of the case studies rely upon increased uniformity (or at least a high degree of equivalence) between NHS organisations regarding their recruitment processes so that employees can move without too much friction between employers. There may also be a desire to ensure that terms and conditions and job descriptions are standardised across groups of employers.
Moves within the NHS are, in theory at least, easier because of the national framework of terms and conditions for NHS employees. There are, however, difficulties in some cases where there has been local variation and, though express terms and conditions may be the same, policies and procedures can vary significantly across the NHS.
The position is more complicated when employees from other sectors are added into the mix. In some cases, attempting to move towards commons terms and conditions and common policies/procedures can fall foul of TUPE protection and/or amount to an unlawful dismissal.
Again, there are practical ways to move to a more harmonised, system-wide offer but this may take time to do without significant challenge.
Most system-wide, integrated models require the effective sharing of employee data. An important consideration can often be how to manage this without breaching data protection obligations. Hempsons recommend that all involved make it a priority to agree how employee data is to be handled safely and ensure that this is set out in a clear agreement to avoid inadvertent breaches of the general data protection regulations.
These case studies illustrate some of the ways that NHS organisations are working more in collaboration. There are clearly great benefits arising from these new ways of working. However, employers should take advice before entering into these new arrangements and ensure they have full knowledge of the potential legal pitfalls that can create problems for the future. There are good, practical solutions to most of these challenges as long as employers recognise the challenges and work to create solutions that minimise the risks.