The election of a Conservative government on 7 May 2015 is likely to have significant implications for workforce issues in the health and social care sectors. This article looks at the main areas where change is likely and how that will affect those in the sector. We start by looking at broad areas of policy and then consider specific changes.
Seven day services
The previous coalition government had started looking at how it could remove or minimise existing inhibitors to providing a full seven day service in the health sector. At present there are several obstacles to implementation including consultants’ right to refuse nonemergency work (between 7pm-7am and weekends), restrictions on junior doctors’ working hours and the enhanced payments for unsocial hours under Agenda for Change (AfC). The negotiations between NHS Employers and the BMA on changes to consultant and junior doctor contracts broke down in October last year when it was thought that they were at an advanced stage.
NHS Employers have since made submissions to the Doctors and Dentists Review Body (DDRB) recommending substantial changes to both the consultant and junior doctor contracts. The DDRB is due to make recommendations in July this year. It is likely that there will be an attempt to re-start the talks shortly but it is not yet clear how likely it is that there will be a deal.
The national pay review body was asked by the previous government to report back on the barriers within the AfC pay system for delivering seven day services in a “…financially sustainable way…”. The government is likely to look at proposals to reform the way that unsocial hours are paid under AfC. There will need to be robust arrangements in place for employees from different organisations to work effectively together.
In addition to the contractual changes required to implement seven day services across the sector, there will also be an increased need to review the current skill mix in many areas and an increased need to work with other health and social care organisations.
Working together
One of the main workforce implications arising from recent developments in the NHS is an increased focus upon integration within the NHS and across other sectors including social care in particular. As well as the move toward seven day services referred to above the recent announcement about the devolution of health and social care in Manchester is another one example of this.
What will this mean for health and social care organisations? There will need to be robust arrangements in place for employees from different organisations to work effectively together. That will vary depending on the circumstances but we expect there to be more secondments, more TUPE transfers, and changes to terms and conditions to allow more flexibility. We also think that there will be a renewed focus on the possibility of shared services across the NHS. This is likely to include traditional back office functions such as HR, IT and payroll initially but could extend a lot further in time. The Local Government Association says that 96 per cent of local authorities are involved in shared service arrangements with other authorities. This has not happened as extensively within the health and social care sector but it is likely to be a feature of the new landscape.
For employees shared services are likely to involve more TUPE transfers, secondments and joint working arrangements.
Public sector exit payments
There is little detail in the Conservative manifesto other than the declared intention to end “…taxpayer-funded six-figure payoffs for the best paid public sector workers” but this is likely to build upon existing legislation regarding public sector exit payments.
The Small Business, Enterprise and Employment Act 2015 (not yet in force and no anticipated date as yet) allows the Treasury to require reimbursement of certain payments (including payments in lieu of notice, redundancy payments and any ex gratia payments). This will apply to those earning over £100,000 who return to the public sector within 12 months in any capacity including on an interim or contractor basis. The government is also likely to cap public sector redundancy payments at £95,000 although there is no further detail on the proposal at this point.
NHS bodies are already under tight restrictions on their ability to make non-contractual severance payments (without Treasury approval). In addition, since 1 April 2015, redundancy payments under AfC terms and conditions have been capped at £160,000. Whether this also affects senior managers and directors will depend upon the terms of their contracts. With the volume and significance of changes to severance packages it is important that executive and nonexecutive directors are aware of the changes and ensure that they are implemented in their organisations.
Human Rights Act 1998
It appears that the government intends to consult on replacing the Human Rights Act (HRA) with a new British Bill of Rights. This consultation was a surprise development in the Queen’s Speech as legislation was expected. However this more circumspect approach demonstrates the sensitivity and constitutional complexity involved in making this change, and in all likelihood any future British Bill of Rights will contain a lot of the “fundamental” rights already contained within the HRA.
Currently courts, including employment tribunals, have to interpret legislation to be consistent with the HRA as far as that is possible. The HRA has often featured in significant employment law cases. By way of example the case of Kulkarni, which concerned the right of a doctor to legal representation, initiated some significant consideration by the courts of whether Article 6 (right to a fair hearing) applied to disciplinary proceedings.
Currently courts, including employment tribunals, have to interpret legislation to be consistent with the HRA as far as that is possible. Some of the recent cases on religious discrimination have also relied upon the HRA. The most publicised case was that of Mrs Eweida, who pursued a claim against British Airways on the basis that its uniform policy stopped her from expressing her Christian faith by wearing a visible cross, before eventually succeeding against the UK government in the European Court of Human Rights. It is not clear whether any future Bill of Rights will make a significant difference to the determination of such cases, but if many of the existing rights remain, albeit in different form, it is not likely.
Industrial action
This government is committed to introducing tighter controls on industrial action. The proposal is to introduce a threshold of 50 per cent turnout (of those eligible to vote) for all industrial action. In addition, for those in the health, transport, fire and education sectors there will be the requirement that those who voted in favour amount to 40 per cent or more of the total eligible voters. This is likely to make it significantly harder for unions to undertake lawful industrial action.
There will also be the requirement to notify employers no later than 14 days before action (currently seven days) and ballots in favour would only be valid for three months. The current guidance on picketing (including a limit of six pickets at one location) will become law and certain types of picketing will become criminal acts.
Employment tribunal fees
The government remains committed to employment tribunal fees and so it is unlikely (subject to the on-going legal challenge) that the new regime will change significantly in the years to come. If the unions succeed in their litigation on the basis that the regime infringes the right of employees to have access to justice, there may be some adjustments of how fees are paid and at what level but they look likely to stay.
Conclusion
In some ways the election of the Conservative government will be business as usual for the health and social care sectors but there are some significant changes on the horizon for which organisations need to plan.
Click here to read our other newsbrief articles on the Greater Manchester devolution, top ten practical issues following the introduction of the Public Contracts Regulations 2015, integrated care, election overview and anonymity law amended.