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Published 3 noviembre 2016
The integration agenda is driving the imperatives of achieving efficiencies, saving money and improving service delivery. But traditional employment structures are not appropriate for new models of care where different bodies work in more collaborative, fluid ways. In traditional care settings, be it health or social care, one organisation delivered a clear set of services. Now we are seeing workers from a range of organisations contribute to different elements of a care pathway. This is a real shift which must be reflected in new models of employment.
Organisations on a care pathway might include social care, private bodies, charities, small primary care providers or hospital staff. The question is how to get employees to work with other people from different organisations where they may not be in a hierarchical role; they may not hold managerial responsibility for those people or indeed be part of the same body, or even part of the NHS.
New models of care need to define where liabilities lie for those involved in service delivery along the pathway. When there are major service redesigns that require staff to change locations or undertake different duties, this can throw up employment law consequences that may require consultation. Any resulting issues should be dealt with pragmatically as they occur. Radical changes in job descriptions might spark a need for a minimum period of consultation as they constitute redundancies under employment law.
Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 requires minimum periods of consultation if 20 or more employees at one establishment are at risk of ‘redundancy’. This period is 45 days if 100 or more employees are involved, and 30 days if its 20-99 employees. The definition of ‘redundancy’ is wider for these purposes than conventionally understood and would include cover where an employer intends to make significant changes to terms and conditions.
Employers must adhere to minimum legal requirements before changing employees’ duties or contracts, which can prove an obstacle to new ways of working. The obligation to consult is principally around reducing redundancies and mitigating effects on employees. In addition, certain statutory information has to be provided to employee representatives. As this usually means consultation with unions, most NHS bodies engage in this consultation as a matter of course when the obligations are triggered. This is because attempts to circumvent consultation are likely to have a wider impact on partnership working with trade unions, or detrimentally affect industrial relations.
Unions generally prefer members to be employed by a traditional NHS body rather than a new hybrid with limited history, or a non-NHS body. However, unions are being pragmatic and are not making any principle objection to the creation of new legal bodies or the transfer of staff. Some disputes have arisen on a case-by-case basis such as where staff have to be TUPE transferred to a small private GP provider. Under this model it is important to define where responsibility for litigation might lie if things go wrong.
Organisations are using Service Level Agreements (SLAs) creatively where contributors agree to the elements of the service they are providing. Staff remain with their current employer but work within a contractually agreed framework to deliver services alongside employees from other providers. Secondment to a particular care pathway is also proving popular.
It provides for flexible working as they can be started and ended fairly quickly. But secondments mean that a particular organisation’s employees are subject to the control of another party, even though the employer continues to bear salary costs and legal liabilities. Under this scenario the substantive employer may incur a liability that it has no part in, or control over.
This can be mitigated by setting up a third-party organisation as a joint venture – for example as a charity or a limited company – to provide a particular service. Yet this has implications for pensions for NHS staff. Recent changes to the way staff have access to the NHS Pension scheme makes it easier for traditional non-NHS providers to access the scheme, but this remains an industrial relations issue with the unions wary of any potential detriment to staff pensions.
Increasingly, we are also seeing the joint employment model being considered; where an employee is jointly employed by two or more organisations to carry out services for them. The key to the success of these arrangements does depend on the clarity of understanding between joint employers on what they can expect from the employee, and ensuring that neither feels that the duties to them are being compromised. Legally, the model raises interesting questions in relation to legal liability – where one employer acts in a way that might cause legal liability, the starting point will be whether the employee can sue the other or both employers.
For advice on workforce issues, contact Udara Ranasinghe on +44 (0)20 7894 6727 or email@example.com.
London - Walbrook
+44 (0)20 7894 6727