Social Enterprise Companies: a checklist

Transcription

1 Document type INFORMATION PAPER Reference ERUS IP 34 Issuing function EMPLOYMENT RELATIONS AND UNION SERVICES (ERUS) Date of issue APRIL 2006 Social Enterprise Companies: a checklist A checklist of questions for NHS staff if faced with a transfer to a social enterprise company THE CHARTERED SOCIETY OF PHYSIOTHERAPY 14 Bedford Row, London WC1R 4ED, UK Tel +44 (0) enquiries@csp.org.uk

2 Social Enterprise Companies: a checklist A checklist of questions for NHS staff if faced with a transfer to a social enterprise company INTRODUCTION...2 CHECKLIST...3 The New Employing Organisation...4 Professional/clinical issues...6 Impact on terms and conditions/employment issues...7 The TUPE transfer...8 FURTHER READING...9 UPDATING OF THIS BRIEFING PAPER...9 1

3 Social Enterprise Companies: a checklist A checklist of questions for NHS staff if faced with a transfer to a social enterprise company INTRODUCTION The White Paper, Our health, our care, our say: a new direction for community services, published on 30 January 2006, gives specific encouragement to the development of new models of service delivery, especially from the third sector - ie voluntary sector organisations and the new co-operatives or social enterprise or community interest companies. For a community interest company (CIC) or social enterprise company (SEC) to be set up, it must be registered with Companies House and must satisfy a community interest test, which is whether a reasonable person might consider that the company s activities (or proposed activities) will be carried on for the benefit of the community. A company must continue to satisfy the test so long as it remains a CIC. (DTI, 2005). The community interest test is overseen by the Regulator of Community Interest Companies (CREG). To date, the CSP is aware of two specific developments in this area and another two proposals to transfer staff to social services rather than to a newly formed company which, although not quite the same, nevertheless have similar implications in terms of what happens to terms and conditions and professional/clinical leadership issues. The two social enterprise or community interest company developments are: Central Surrey Health Ltd This proposal by East Elmbridge and Mid Surrey PCT to set up a social enterprise company for the future delivery of nursing and therapy services is set to launch in June or July Union full-time officers (including the CSP) have met the PCT Chief Executive to discuss outstanding concerns about the way the initiative is being progressed. The Department of Health has confirmed that staff transferred to the new company will be able to remain members of the NHS Pension Scheme, but the company will have to make its own arrangements in respect of early retirement, redundancy and ill health/injury benefit provision. 2

4 Leeds PCTs The Chief Executive of Leeds NW PCT is leading a project to look at establishing a social enterprise company for the provision of community services across the five PCTs. Echoing the developments in Surrey, this is being portrayed as a staff-driven project, although this is disputed by staff including CSP members on the ground. The two proposals to transfer physiotherapy staff to social services (where some of the questions below relating to social enterprise companies will similarly prove useful) are: Leicestershire Partnership Trust It is proposed that all staff in learning disabilities at this trust should transfer to social services. Most health staff, including CSP members, are generally opposed to the prospect and are actively lobbying local MPs and other stakeholders. Their concerns centre around further fragmentation of services given that social services are more clearly split between the country and the city, the lack of knowledge within social services of the role of physiotherapy and therefore clinical governance issues, the potential impact on relationships with other NHS trusts and the arrangements for joint rotational posts and student placements, and the implications for terms and conditions of employment. Chesterfield PCT/Derbyshire Mental Healthcare Trust The proposals here are also for a transfer of learning disabilities staff to social services, under the Section 31 Partnership Arrangements. Members have voiced similar concerns to colleagues in Leicestershire and the local Staff Side is campaigning for alternative options to be investigated. CHECKLIST The following checklist has been drawn up from the experience of NHS staff in East Elmbridge and Mid Surrey PCT over the creation of the social enterprise company, Central Surrey Health Ltd. This checklist comprises questions that have come out of the consultation process. The questions, which may prove useful to others faced with similar developments elsewhere, have been categorised, and questions that are similar have been grouped together (although there may be some duplication of questions between categories). It is recommended that both the current employer and any proposed new employer be formally asked to provide written responses to these questions and any others posed as part of the consultation process. 3

5 The New Employing Organisation What is the evidence base that providing community services in this way will be more beneficial to patient care than the PCT providing them direct? What form will the Company take full private limited company, social enterprise company, community interest company, co-operative, other? Is it correct that we will no longer be employees of the NHS under the Social Enterprise Company (or other) model? What will be the internal management and staff participation structure? When will that be finalised and when will staff be informed? How will trade union recognition and participation fit in with this? How long will the contract run for and what will happen if the PCT judges that services are not being delivered as contracted for? What will be the contract price and is this the cost of existing PCT provision of these services? How will money be paid to the Company? Will the contract allow the PCT, without a penalty, to delay payment because of NHS financial difficulties? (The same, apparently, is being reported that East Suffolk PCT is deferring payment to GP practices despite PMS contractual commitments) Will the contract be legally enforceable and/or subject to an internal disputes procedure? When the contact comes up for renewal, will this be on the basis of the Company having to compete against other private, voluntary or NHS providers? What will be the implications for staff if the contract is not renewed? How will the following items be included in the contract? Overheads for the use of premises and equipment Maintenance and service contracts: where they sit, will they roll over? Capital expenditure 4

6 Meeting Government targets, changes in targets during contract duration HR, payroll, contract administration, legal services, marketing Professional liability insurance IT capital and running costs Medical supplies Innovations Local performance targets and under-/over-activity issues Pension costs, including additional benefits above the basic scheme, eg illhealth, early retirement, enhanced years, redundancy compensation Does the Company have SPMS (Specialist Personal Medical Services) status? Will the national tariff or standard NHS charges apply, or will there be some incentivisation for the Company as a new provider, similar to that given to Independent Sector Treatment Centres (ISTCs)? Will NHS standards and guidelines apply? Will Healthcare Commission inspections be carried out as in the NHS? Will there be a Statutory Board Representative in the new Company, to look at clinical governance arrangements? What happens if targets are not met? Any service level agreements that the Company has in place, how is it proposed to monitor them to ensure the service level is being met? Will our current equipment transfer with us or will the Company have to purchase it? If purchase, has this been factored in to the costs? Will the Company be maintaining the current equipment loan service (ie NRS)? Will we retain the NHS logo and domain? If we are to believe that we are all co-owners, why was there no consultation about appointments of senior positions and no choice given to staff as to whether they wished to be part of the new Company? Are we going to start recruiting? Will the posts be open to fair competition? Are we going to be top heavy with managers again? Will the staff forum/newsletter have proportional representation from various areas of nursing and therapies? 5

7 What vision is there for restoring the previous comprehensive service which we were able to provide? What is the training budget and will it only cover mandatory and statutory training? What happens if the new SEC collapses financially? Will staff be taken back into the PCT? What are the implications for staff if the Company gets into financial trouble? Will staff have any liability in the event of financial collapse of the new Company? What are the implications to individuals of being a co-owner of company if it fails? Has the Company got limited liability in place? Has the Company got a failure plan (or should that read contingency plan ) in place? Will there be a relocation of staff? Will some bases need to close due to financial pressures? Can the Company assure staff that they will be open and transparent over all issues within the Ltd company, even if the Company falls on difficult times? Do you know how low staff morale is at the moment? Professional/clinical issues What will be the professional leadership and clinical leadership structures? What happens with our liability and cover for us all that prescribe (insurance cover)? Is the Company going to have the correct insurance cover? How will senior clinicians be involved in designing and developing service models for the future? Will the PCT carry out its own inspections as part of the clinical governance process? What will be the Company s clinical governance arrangements? How will the Company interface with other agencies across the region and elsewhere? Will we retain our current referral pathways to other services? Can we have some clarification of the communication pathways? 6

8 What will be the contract to allow for the clinical excellence, training and development of staff? Will sufficient resources be allocated and time protection put in place to ensure CPD? Will equivalent levels of support for training and CPD be put in? How can this be guaranteed? How, specifically, will senior clinicians be involved in local practice based and PCT commissioning? Will the Company take its share of students and newly qualified graduates? Impact on terms and conditions/employment issues Trade union recognition and collective bargaining: will the Company recognise the unions and the appropriate negotiation and consultation procedures? Will the Company recognise the activists ie stewards, health and safety reps, learning reps, AfC reps etc and honour existing facilities agreements? Will the Company honour all existing NHS terms and conditions for the lifetime of the contract, including any annual pay awards? Will the new Company incorporate future NHS pay and conditions agreements and other collective agreements? How likely is it that AfC banding will be retained and be seen as a commitment? Will the new Company implement the Knowledge and Skills Framework (KSF)? Will mechanisms be put in place to maintain the AfC equality-based pay and grading system (trained job matchers, evaluators etc)? What happens to staff contracts/terms of employment when the initial contract is up for renewal? As a result of the formation of the SEC, will there be loss of long-service entitlements: is there any provision for this in the new company? Will the Company fund the training and development of staff? Will the Company fund student placements? 7

9 We would like clarification of the injury and redundancy protection? What is the proposed child protection support? What happens to staff pay and conditions/pensions if the Company goes out of business/fails to obtain contract/sells out to a profit making private healthcare organisation? Who undertakes to pay pensions and additional benefits? Is it the NHS or is it the Company? Will staff remain members of the NHS pension scheme and be able to continue to make contributions to it? Will pension benefits be for life? What guarantee do we have that terms and conditions of employment and pensions will not change after two years? I am appalled that, having worked for the NHS for x number of years, I shall no longer be an NHS employee through no choice of my own. Is there anything I can do? Will the PCT take back staff in the event of the financial collapse of the Company? Will new staff be employed on the same terms and conditions? Will Improving Working Lives (IWL) be mandatory in the new Company? The TUPE* transfer *TUPE the Transfer of Undertakings (Protection of Employment) Regulations [an updated ERUS briefing on TUPE will be available shortly]. How long is the TUPE process set at? What is the timetable for signing the contract and how long will the contract be for? If we are expecting to TUPE over, do we see a document/statement about the terms and conditions under which we will operate? 8

10 FURTHER READING DTI (2005) Community Interest Companies: The Regulator of Community Interest Companies. January Department of Trade and Industry. DTI (2005) Community Interest Companies: Forming and Running a Community Interest Company. March Department of Trade and Industry. UPDATING OF THIS INFORMATION PAPER This briefing will be updated as and when required. If you have further questions to add to the ones in this checklist, please send them to Warren Glover, Research & Policy Officer, CSP Employment Relations & Union Services: gloverw@csp.org.uk This briefing was last updated on 7 April