Organisational Change Policy for NHS Wales

Transcription

1 Organisational Change Policy for NHS Wales Reference Date Purpose of Issue/Description of Change Planned Review Date HR023 January 2010 April 2011 Responsible Officer Approved by Committee/Board/Group Date Approved by Committee/Board/Group Deputy Director of Human Resources Partnership Board 8 th April 2009 Bwrdd Iechyd Addysgu Powys yw enw gweithredol Bwrdd Iechyd Lleol Addysgu Powys Powys Teaching Health Board is the operational name of Powys Teaching Local Health Board Page 1 of 53

2 Foreword The management of organisational change should be managed with sensitivity to ensure that concerns of staff are addressed. The Welsh Partnership Forum has worked to develop fair and equitable arrangements which are underpinned by Human Rights and equalities principles and legislation, to ensure that staff are treated fairly and equally and remain fully supported throughout the process of organisational change. It is expected that all NHS organisations will adopt this Policy as the core standards of practice, which will apply to all staff affected by change. Peter Finch Chartered Society of Physiotherapy Joint Chair, Welsh Partnership Forum Sheelagh Lloyd Jones HR Director NHS Wales Page 2 of 53

3 CONTENTS Page Numbers 1 Introduction 5 2 Scope of The Policy 5 3 Policy Statement 5 4 Principles to be Observed 6 5 Consultation with Staff Interests 6 6 The Introduction of Change The Organisation The Trades Unions 7 7 Anticipating and Preparing for Change Restrictions on Vacancy Filling Temporary Appointments to Maintain Services Staff Affected by the Change and Notice Provisions 8 8 Managing Staff At Risk of Displacement Placing Staff at Risk of Displacement Priority Status Staff Seconded and Acted Up Staff Seconded and Acted Up Staff With Less Than Four Years Continuous Service Seconded and Acted Up Staff With Four Years or More Continuous Service Fixed Term Staff Collection of Information Support Arrangements 11 9 Procedure for Filling Posts During Organisational Change Application Principles Slotting in Prior Consideration Restricted Competition Selection Process Appealing Against a Decision Actions to be Considered Following the Appointment Process Transfer to a New Employer The Transfer of Undertakings (Protection of Employment) Regulations (2006) TUPE Cabinet Office Statement of Practice Information Rights Consulting with Affected Staff Trades Union Members of Staff Non Unionised Members of Staff Refusal to Transfer Re-engagement Following Redundancy 15 Page 3 of 53

4 10.7 Career Planning and Support for Displaced Staff Alternative Employment NHS Reform Programme (2009) Alternative Employment Scheme Alternative Employment Principles and Procedure Factors to be Considered When Determining Suitable Alternative Employment Offers of Alternative Employment Trial Periods Staff not Redeployed Rights of Appeal Arrangements for Salary Protection Definition of Earnings Protection Short Term Protection of Basic Salary Long Term Protection of Basic Salary Length of Basic Salary Protected Period Pay Protection Principles Criteria for the Payment of Protection Excess Travel and Car Parking Relocation / Removal Expenses Review, Evaluation and Monitoring Arrangements Formal Review Evaluation Monitoring 22 Appendix 1 Procedure for Filling Posts During Organisational Change Flow Chart 23 Appendix 2 Organisational Change Grievance Policy 24 Appendix 3 Organisational Change Grievance Registration Form 28 Appendix 4 Redundancy Policy 30 Appendix 5 NHS Reform Programme (2009) Recruitment and Selection Procedure for New Local Health Board Organisation Chief Executive and Executive Director/Board Level Director Posts 35 Appendix 6 NHS Reform Programme (2009) Alternative Employment Scheme 43 Page 4 of 53

5 1 Introduction Organisational Change Policy for NHS Wales This policy has been developed by the Welsh Partnership Forum and sets out the principles that apply in managing internal organisational change within NHS Wales. In this context such change includes mergers and de-mergers between NHS organisations in Wales. NHS organisations will adopt and abide by this Policy as the core standards of practice, which apply to all staff affected by change. At times of organisational change it is particularly important to ensure that support, guidance, training and development opportunities are made available to all staff employed by NHS organisations within Wales in accordance with best practice, The wider NHS in Wales will be responsible for assisting in the redeployment of staff from any NHS organisations affected by organisational change. 2 Scope of the Policy This Policy replaces Welsh Health Circular WHC(2008)017, An Organisational Change Framework for NHS Wales, which was issued June The Organisational Change Policy will apply to all NHS Wales staff that are affected by mergers, de-mergers, organisational change, service developments and NHS Reform. The following sections and appendices of the Policy will only apply during the NHS Reform Programme (2009); Appendix 5 NHS Reform Programme (2009) Recruitment and Selection Procedure for New Local Health Board Organisation Chief Executive and Executive Director/ Board Level Posts; and Appendix 6 NHS Reform Programme (2009) Alternative Employment Scheme. 3 Policy Statement In the application of this Policy all staff will be treated with dignity and respect and in accordance with equality and human rights legislation. No individual will be treated less favourably on the basis of age, (except in so far as it is affected by the age retirement policy) disability, gender or transgender, race, religion and belief and non-belief, sexual orientation, pregnancy, hours worked (fulltime or part-time) or trades union membership etc. Organisations are required to monitor the implementation of this Policy and ensure that they assess its impact across the equality strands and in respect of human rights. This will require the collection, monitoring and reporting of workforce equality data for all staff identified as being at risk and subject to the provisions of the Policy. 3.2 All relevant policies affecting staff shall be agreed through partnership arrangements with trades unions and will: be fair, equitable, lawful and compliant with current legislation; recognise the value and skills of individual staff; Page 5 of 53

6 provide assurance that staff have a valuable contribution to make to the new agenda / organisation; be open, transparent and fully involve all staff; promote and support the continued development of staff; and have clear channels of communication and consultation. 4 Principles to be Observed 4.1 It is the policy of NHS Wales to prevent all avoidable compulsory redundancies, which could potentially occur as a result of organisational change. As such, it is the aim of this Policy to ensure that the NHS retains the valuable knowledge, skills and experience of its workforce, by utilising a number of strategies, to assist displaced staff to find suitable alternative employment and / or retraining opportunities, which will enable them to continue to contribute positively to the service. 4.2 Subject to the processes outlined below, when the need arises to redeploy staff, NHS organisations will: a) consider the use of short term temporary staff in any period of change, to maintain service requirements until the change is completed and to maximise potential redeployment opportunities; b) use early retirement and / or voluntary redundancy schemes where circumstances and / or resources allow; c) after consultation, identify (in pay and conditions) suitable alternative work in the employing organisation, for staff affected by the change; d) transfer staff affected to suitable alternative work with other organisations, by agreement with the staff concerned and the organisations concerned; e) support staff who wish to retrain and are qualified to undergo training for posts in other disciplines / areas, where reasonable; and f) by means of the development review / personal development plan process, assist and support staff to overcome constraints, which may prevent them undertaking a new role. All staff are entitled to be represented or accompanied by a recognised trades unions official, local trades unions representative or a workplace colleague, when subject to any of the arrangements arising from this Policy. 5 Consultation with Staff Interests 5.1 Each employing organisation s senior managers will continue to work in effective partnership with representatives of Trade Unions on the implications for staff in respect of strategic and other major plans concerning the organisation and provision of services. Such discussions will take place through local partnership arrangements. 5.2 In any discussion with staff, it is expected that there must be regard for the need to ensure that communication is effective and meets any individual s needs in accordance with equalities principles and legislation. This includes the duty to carry out reasonable adjustments under the Disability Discrimination Page 6 of 53

7 Act e.g. to provide a loop system, easy read etc. 5.3 Additionally, management will continue to discuss with staff and their representatives, at departmental and other appropriate levels as agreed, the workforce implications of particular changes or developments, which appear likely to have a significant effect on the work of individuals, the departments or staff group concerned, before any final decisions are taken. 5.4 In conducting such consultations, management will follow the principles set out in the following section on the Introduction of Change. They will also be required to provide in advance, written details of any proposed organisational change and / or the workforce implications, to facilitate discussion with the staff affected. 6 The Introduction of Change 6.1 The Organisation (a) recognise that staff and their representatives have an expectation that management will discuss with them the reasons for and the implications of any proposals or options, which appear likely to have a significant effect on the nature of the work they perform or the arrangements or conditions under which the work is carried out; and (b) undertake that its managers will discuss in a timely manner such proposals or options and their implications with the staff and their representatives, which are likely to be affected by them, before final decisions are taken. 6.2 The Trades Unions (a) recognise that in the interests of patient care and the efficient use of resources, the organisation s managers have a responsibility to review from time to time the activities of individual and groups of staff and the arrangements and conditions under which such activities are performed; and (b) undertake to advise their members to co-operate in the introduction of changes arising from such reviews, where the principles set out in this Policy are followed. 6.3 Both management and trades unions also recognise that there is no single universal prescription, which can be meaningfully followed in every case where changes are proposed. Where, however, the changes proposed are of a significant nature, some prior discussion regarding the reasons for them, any available options and their implications will be necessary. As a general rule, such discussions are best conducted between the responsible manager, the staff affected and their representatives. Where the changes envisaged appear likely to affect the location, hours of work, grades / bands or earnings of the staff concerned, the responsible manager should consult the accredited representative(s) of the staff concerned, at the earliest possible stage. 6.4 Particular consideration should be given to the following points during the discussion of any proposed changes, as applicable: Page 7 of 53

8 a) health and safety implications; b) training or re-training needs; c) staffing requirements; d) arrangements for redeploying or transferring any displaced staff; e) arrangements for recruiting any additional staff; f) any required changes to shift patterns, location and / or hours of work; g) any grade / band implications; and h) applicability of any relevant protection arrangements. 7 Anticipating and Preparing for Change 7.1 Restrictions on Vacancy Filling Restrictions on the filling of vacancies in certain categories of posts (other than on a short term temporary basis) will be introduced to assist in creating suitable alternative positions for staff affected by the change. Employers will consult with trades unions in a timely manner, in respect of the categories of posts which need to be brought within this restriction, as required. 7.2 Temporary Appointments to Maintain Services A number of fixed term appointments or secondments may be required to maintain services whilst rationalisation or reorganisation of services or organisations takes place. These temporary arrangements will be required either to fill gaps in the service or organisation that is undergoing change, or to fill gaps elsewhere, to 'reserve' places for staff who will become displaced but who are required to remain in their current post for the time being, to maintain adequate services. The reasons for the temporary nature of the appointment must be given clearly in writing to any staff appointed in this capacity and an estimate should be given as to how long the appointment will last. In these circumstances fixed term appointments or secondments will not normally be made where the position concerned is likely to continue for a period of more than one year. 7.3 Staff Affected by the Change and Notice Provisions A list of staff at risk of being displaced from their substantive post as a result of each approved reorganisation, rationalisation or reduction of services should be compiled at the earliest practicable date. Managers will be responsible for the compilation of such lists, in conjunction with HR/Personnel Departments and for informing relevant representatives. Whilst every effort must be made to find suitable alternative employment and arrange redeployment in line with the change timetable, staff affected must be advised by their line manager as to their position, throughout the change process. Careful consideration must be given, in the light of the circumstances of the change programme, as to the timing of the issue of any notices of redundancy. 8 Managing Staff at Risk of Displacement 8.1 Placing Staff at Risk of Displacement The timing of when staff will be declared at risk of displacement is important and this will be agreed in partnership with the trades unions, at the start of any period of organisational change. Page 8 of 53

9 8.2 Priority Status Staff Having identified and agreed the staff that will be affected by any change process, priority status will be afforded to those staff that are at risk of being displaced from their substantive post. 8.3 Seconded and Acted Up Staff The procedure for filling posts during organisational change, set out in Section 9 of this Policy, will not be applicable to a seconded or acted up role, which will be affected by the organisational change process, unless the member of staff has been in the post for a period of 4 continuous years or more, on the date on which they are displaced. A member of staff who is seconded or acting up may however be included in the provisions of Section 9 if they hold a substantive role which is subject to organisational change. In these circumstances the secondment or acting up arrangement will cease if the member of staff is slotted in or has prior consideration rights in regard to their substantive role Seconded and Acted Up Staff With Less Than Four Years Continuous Service Where a member of staff has been seconded or acted up in a post for a period of less than 4 continuous years, on the date on which they are displaced, the banding / grading and terms and conditions of service of their substantive post will be used to determine offers of suitable alternative employment, should they be unable to return to their substantive post. Where a member of staff has been seconded or acted up into a post with no agreement to return to their substantive post, it will be the responsibility of their substantive employing organisation to find them suitable alternative employment where possible, at the end of the secondment / acting up period. This post should be at the same band / grade and on similar terms and conditions to those the member of staff was employed on, prior to the commencement of their secondment. Where a member of staff has been seconded or acted up into a post with no agreement to return to their substantive employing organisation, it will remain the responsibility of their former substantive employing organisation to find them suitable employment. This post should be where possible at the same band / grade and on similar terms and conditions to those the member of staff was employed on, prior to the commencement of their secondment. Where a member of staff s substantive employing organisation no-longer exists, it will be the responsibility of the successor organisation, to the original employing organisation to honour their return to their substantive post, where this is still available, or to find them suitable employment where possible, should the post no longer be available or exist. This post should where possible be at the same band / grade and on similar terms and conditions to those the member of staff was employed on, prior to the commencement of their secondment. Where a seconded member of staff has a substantive contract but never held a substantive post with their employing organisation, i.e. their Page 9 of 53

10 contract is hosted; it will be the responsibility of their employing organisation to find them suitable employment where possible. This post should where possible be at the same band / grade and on similar terms and conditions to those the member of staff enjoyed in their secondment post Seconded and Acted Up Staff with Four or More Years Continuous Service Where a member of staff has been seconded or acted up in a post for a period of 4 continuous years or more, on the date on which they are displaced this will be considered to be their substantive post. In these circumstances the member of staff s secondment / acting up banding / grading and terms and conditions will be used to determine offers of suitable alternative employment, should they not be appointed to a post using the slotting in or prior consideration principles. 8.4 Fixed Term Staff Under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, a member of staff on a fixed term contract (e.g. the member of staff has been appointed to work in a fixed term or temporary post until a specified end date, event or task) is entitled to equal treatment. This equal treatment applies in terms of pay, benefits, equal opportunities for promotion, training and further development, including the right to be informed of all suitable available vacancies, and equal access to the occupational pension scheme, unless the less favourable treatment can be objectively justified by the employer. Where a member of staff has been appointed on a fixed term contract and is affected by organisational change, the manager should liaise with the Human Resources Department. Where a member of staff has been employed specifically to cover e.g. maternity leave, sickness absence or to undertake a specific project, it is unlikely that they will have an entitlement to the provisions outlined in Section 9 of this Policy. Where an employer is proposing to dismiss a member of staff employed on a fixed term contract, there should be full consultation with affected member of staff and a thorough consideration of alternative employment prior to this decision being taken. 8.5 Collection of Information All staff identified as being at risk of being displaced should be informed of their position and interviewed by their manager, with appropriate support and advice from HR/Personnel Department, as soon as possible and, if they so wish, in conjunction with their staff representative. This should be confirmed in writing. A special record should be created for each member of staff considered to be at risk of being displaced, to record relevant personal details, circumstances, preferences, knowledge, skills, qualifications and experience. To co-ordinate the numbers of staff at risk of displacement in any large scale reorganisation, it may be necessary for affected staff to have their range of knowledge and skills assessed using a consistent format. This will ensure that appropriate vacancies and opportunities can be identified speedily and without the need for these staff to be interviewed on more than one occasion. This Page 10 of 53

11 process will be undertaken in partnership, by appropriately skilled managers and staff representatives. 8.6 Support Arrangements Managers must ensure that local arrangements are established to assist staff who are at risk of being displaced or whose posts are potentially at risk. The following points can be regarded as a checklist of support facilities, which could be offered: access to career advice; access to counselling; access to suitable senior staff to act as mentors and provide external advice and guidance as appropriate; arrangements for accessing and / or restricting vacancies as appropriate, using NHS Jobs; assistance and advice on CV writing, application form filling, interviewing skills, etc.; assistance with access to NHS Jobs, job centres, recruitment consultants, etc.; facilities and assistance for sending CV s to all-wales NHS bodies, organisations and employers; contact with and access to retraining opportunities and allowances, further education establishments, etc.; and access to independent financial and pension advice in the event of redundancy or early retirement. The above list is not exhaustive. It is intended to be a general guide on areas for consideration. 9 Procedure for Filling Posts during Organisational Change 9.1 Application This procedure will apply to all staff affected by organisational change, with the exception of the appointment to Chief Executive and Executive Director / Board Level Director posts, during the NHS Reform Programme (2009). The procedure for filing these posts is set out in Appendix 5. Employers should make appropriate arrangements to ensure that all staff affected by change, including those on any form of authorised absence, which may include maternity leave, parental leave, carers leave, term-time working, long term sick leave or secondment, are considered at each stage of this procedure and are not disadvantaged in any way. 9.2 Principles The arrangements for filling posts should be based on the following broad principles, applied to all members of staff with a permanent contract of employment, but may exclude those staff employed on fixed term contracts (please refer to Section 8.4 above); all those eligible for consideration for a post should be treated on the basis of equality; all staff should have a legitimate expectation that they will be found a post with similar pay and conditions of service (suitable alternative employment); where a member of staff accepts a suitable alternative post, which attracts a lower salary, their pay will be protected in accordance with the Page 11 of 53

12 Arrangements for Salary Protection, set out in Section 11 of the Organisational Change Policy; consideration should be given to the different circumstances of staff with domestic / caring responsibilities, flexibility around part timers etc.; reasonable adjustments should be made to a role and/or working environment to support disabled staff to gain an alternative post or suitable alternative employment; opportunities for career development and maximising a member of staff s employment potential should be encouraged wherever possible; there should be consistency in approach between all organisations in terms of time-scales and processes to ensure equity; all job applicants should be treated fairly and with dignity and respect: Principles of equality will apply and the process will be transparent; the organisation must commit to securing employment for all staff affected by the change, including the use of redeployment schemes, trial periods and retraining; all appointment decisions should be based on merit and on the suitability of each candidate for the post, based on an assessment of their knowledge, skills, experience etc., against the new post s person specification and job description; staff with flexible working arrangements e.g. term-time working, job-share, part-time, should not be disadvantaged by the process. All requests to work flexibly must be given full and fair consideration; full details of available posts in a new structure must be available to all staff (including pay band, title, job description and person specification) and provided in a timely manner, including to those on an authorised absence; where posts or groups of posts are judged not to have altered substantially, the principles of slotting in and prior consideration should be applied; a post may be considered as substantially unchanged if the scope of the role remains unaltered and it matches two thirds or more of an existing job description and person specification; and all staff must be considered at each level, in a new structure and the two thirds rule must be applied to determine the status of the post(s). 9.3 Slotting In Slotting in will apply where a post is substantially unchanged and there is only one candidate or equal numbers of posts and candidates, who currently undertake this role. In this circumstance the post would not be advertised and the individual(s) whose post(s) meets the criteria would be slotted into the post(s). Consistency in the approach to and the application of the slotting in principles are essential. A flowchart is attached at Appendix 1, which describes the steps to be followed. In cases of disagreement about whether the job is substantially unchanged, the two job descriptions and person specifications will be submitted to an independent member of the HR team, management and a trade union representative. Anyone involved in the review will have no working relationship or have had any involvement in previous discussions relating to the review, with the aggrieved staff member(s). It will be the role of this independent panel to review the original outcome and to reach an objective decision. Should the staff member(s) continue to disagree with the independent review decision, they may lodge an appeal, in accordance with the appeals procedure contained in paragraph 6.7 of the Grievance Policy set out in Appendix 2 of this Policy. Page 12 of 53

13 9.4 Prior Consideration Prior consideration will apply where a post is substantially unchanged (e.g. the scope of the role remains unaltered and it matches two thirds or more of an existing job description and person specification) and there is more than one potential candidate. Selection will be undertaken by interview (see 9.6 below). Opportunities for staff development will be considered at every stage of the selection process. Where a member of staff is eligible to express an interest in more than one post they will be required to indicate their preferences in rank order. Consistency in the approach to and the application of the prior consideration principles are essential. A flowchart is attached at Appendix 1, which describes the steps to be followed. If following the prior consideration process staff are unsuccessful in being allocated to a post, they may be eligible for consideration in respect of a restricted competition post at the same or a lower level, if there are no other staff at that level with slotting in or prior consideration rights. 9.5 Restricted Competition Where a post is considered to be new or substantially changed it should be filled in the first instance by restricting competition to staff affected by the changes. It should be noted that the restricted competition principles will not apply to the of the appointment to Chief Executive and Executive Director / Board Level Director posts, during the NHS Reform Programme (2009). These new posts will be subject to a separate procedure, as they will in the main be fundamentally different in size, scope and complexity from existing roles in existing organisations. The procedure for filling these posts is set out in Appendix Selection Process Where appointment to a post is subject to prior consideration or restricted competition, an interview will be the minimum selection process requirement. The process of selection will be carried out by reference to the relevant job description and a person specification and KSF Outline (where appropriate), including the following objective criteria, against which the requirements of the post will be measured: qualifications; relevant experience; skills and knowledge and any other particular aptitudes/attributes identified for the post; suitability for trial period/retraining to meet the criteria; and the need for reasonable adjustments to posts in accordance with disability legislation. Every member of staff involved in the process will be able to receive feedback on their performance, from a nominated member of the interview selection panel. 9.7 Appealing Against a Decision In the case of a dispute in respect of the selection procedure associated with organisational change, a member of staff may lodge a grievance, in accordance Page 13 of 53

14 with the Grievance Policy set out in Appendix 2 of this Policy. 9.8 Actions to be Considered following the Appointment Process Following the appointment process, the organisation will need to consider the position of any members of staff not appointed to posts in the new structures. Every practicable effort will be made to avoid compulsory redundancies. Organisations and affected members of staff are required to further explore the following options: redeployment elsewhere within the organisation; redeployment within other NHS bodies within Wales; secondment arrangements with other NHS bodies and public sector organisations in Wales where practical and feasible; and re-training to undertake a new role. To reduce the potential for compulsory redundancies, there may be a need to consider the merits of inviting staff to volunteer for early retirement and redundancy at an early stage and prior to the implementation of the selection process. 10 Transfer to a New Employer 10.1 The Transfer of Undertakings (Protection of Employment) (TUPE) Regulations (2006) The Transfer of Undertakings (Protection of Employment) Regulations (2006) are commonly known and referred to as the TUPE Regulations. These Regulations provide employment rights to members of staff when their employer changes as a result of a transfer of an undertaking. The effect of these Regulations is to preserve the continuity of employment and terms and conditions of those staff that are transferred to a new employer, when a relevant transfer takes place. This means that staff employed by the previous employer when the transfer takes effect will automatically become employees of the new employer on the same terms and conditions of service. The Regulations also contain specific provisions to protect members of staff from dismissal before or after the transfer. The Regulations therefore ensure that members of staff are not penalised when they are transferred by being placed on inferior terms and conditions. Therefore, not only are their pre-existing terms and conditions transferred across on the first day of their employment with the new employer, the Regulations also impose limitations on the ability of the new employer and the transferred staff to agree a variation to terms and conditions thereafter Cabinet Office Statement of Practice The Cabinet Office Statement of Practice Staff Transfers in the Public Sector (Revised 2007) provides staff with a further reassurance, as it requires the public sector to treat TUPE as applicable upon any change of employer as a result of reorganisation in the public sector Information Rights The Regulations requires the existing employer to provide information to the new employer regarding transferring staff, prior to the relevant transfer date. The Regulations state that this information should be given at least two weeks before the completion of the transfer, or if special circumstances make this not reasonably practical, as soon as is reasonably practicable. Page 14 of 53

15 As such the existing employer is required to provide the new employer with specific information (in writing or other forms which are accessible to the new employer) which will assist them to understand the rights, duties and their obligations in respect of the transferring members of staff: 10.4 Consulting with Affected Staff The TUPE Regulations place a duty on both the existing and new employers to inform and consult staff who may be affected by the transfer. The Regulations do not prescribe a timescale for such consultations, other than to state that such consultations should take place long enough before a relevant transfer to enable the employer of any affected employees to consult with the appropriate representatives Trades Union Members of Staff NHS Wales encourages all members of staff to join a trades union. Where staff that may be affected by a TUPE transfer are represented by a recognised trades union(s), the existing employer must inform and consult with a recognised authorised official i.e. local or full-time officer of that union(s) Non Unionised Members of Staff Where staff that may be affected by the transfer are not represented by a recognised trades union, the employer is required to inform and consult with an appropriate representative of these staff. The employer will enable members of staff who wish to elect a representative to do so and will inform and consult with them as appropriate Refusal to Transfer It is accepted that some staff will struggle to accept change and may fail to make the adjustment, and may therefore need to be counselled as to their options. The legal position of those staff who may decide not to transfer is that they will be voluntarily leaving their employment without any entitlement to notice or other severance compensation. Employers should treat such staff sympathetically and arrange to meet with them to fully explore their reasons for refusing to accept a transfer and discuss alternative re-deployment opportunities should they exist Re-engagement Following Redundancy For NHS Terms and Conditions of Service purposes, NHS organisations are associated employers. Therefore if a member of staff is made redundant and accepts and commences a new NHS post within four weeks of leaving the previous post, they are not entitled to redundancy pay under the regulations. Steps should therefore be taken by NHS organisations to actively identify and pursue suitable vacant / advertised posts, to avoid a redundant member of staff receiving a significant redundancy and / or termination payment and then taking up another post elsewhere in the NHS, after the 4 week period. Detailed legal advice may be necessary according to the individual circumstances and compliance with DGM (94) 99. Page 15 of 53

16 10.7 Career Planning and Support for Displaced Staff Local mechanisms will be established to provide support to those staff that are displaced or who may need support to adjust to a new working environment. The aims of developing such a scheme are to: retain skills and experiences within NHS Wales; avoid unnecessary loss of staff and reduce redundancy costs; effectively support individuals whose career is in transition; ensure fair and equal treatment of staff across NHS Wales; and provide personal support for those staff who may not be displaced but who are generally concerned about the effects of organisational change on them. 11 Alternative Employment 11.1 NHS Reform Programme (2009) Alternative Employment Scheme During the implementation of the NHS Reform Programme, The NHS Reform Programme (2009) Alternative Employment Scheme (Appendix 6) will replace all local NHS Wales organisational change redeployment policies. During this period, NHS Wales organisations should continue to operate local schemes to manage redeployments which are not related to the NHS Reform Programme. All affected NHS Organisations are therefore required to establish and operate an Alternative Employment Scheme, to ensure that all reasonable efforts are made to assist staff, where necessary, to find suitable alternative employment, to enable them to continue their careers within the National Health Service Alternative Employment - Principles and Procedures The following principles and procedures will apply to all NHS organisations when managing internal organisational change within NHS Wales Factors to be Considered When Determining Suitable Alternative Employment In considering displaced staff for redeployment to particular posts, consideration should be given to the following significant factors: an assessment of the member of staff s knowledge, skills, qualifications, experience and competence, against the job description and essential person specification criteria for the post; the member of staff s substantive band / grade; all efforts should be made to accommodate the personal circumstances of the member of staff, which may render a post unsuitable. Personal circumstances may include hours of work, caring responsibilities etc; the absence in a new structure of any or all of the principal activities present in any current post; the cessation of any funding directly linked to the provision of the service provided by one or more members of staff; the requirement to make reasonable adjustments to posts in accordance with the Disability Discrimination Act (2005); and the requirement not to unlawfully discriminate against disabled staff seeking redeployment opportunities, by providing staff at risk of redundancy with preferential treatment. The above criteria are not listed in any particular order or preference. Page 16 of 53

17 11.4 Offers of Alternative Employment Employers have an obligation to consider alternative employment for potentially redundant staff and should therefore do what they can, so far as is reasonable, to provide alternative work. There is no obligation on the employer to create alternative employment for displaced staff at risk of redundancy where no such opportunities exist. The Employer will therefore seek to offer all displaced or at risk staff with a permanent suitable alternative post. It is therefore the responsibility of the employer to draw to the attention of displaced or at risk staff the details of job vacancies from within the employers own organisation and associated employers (NHS organisations). Any offer of alternative employment, which is considered to be suitable should be made in writing, providing sufficient details of the post and allowing reasonable time for the member of staff to consider it. Any offer should be made as early as possible, but at least prior to the end of their notice period, if served. The offer should, where appropriate attempt to indicate the principal ways in which the new post is different from or similar to the old post, to enable the member of staff to make an informed decision. Any such job offer must be available no later than four weeks, following the end of the member of staff s notice period. The obligation on the employer and the staff member to look for alternative employment continues up to the end of the notice period. Therefore, if an alternative job becomes available prior to or during the notice period the employer should make the redundant member of staff aware of the post. An employer does not have to solely offer an equivalent job at the same status or level as suitable alternative employment and is also required to offer jobs at a lower status or level where these are deemed to be suitable. In these circumstances protection of pay will apply. The employer should however aim to ensure that any such offers of alternative employment: a) provide similar terms and conditions as attached to the member of staffs previous post in respect of band / grade, pay, contracted hours, career prospects, geographical location and any other significant conditions; and b) the organisation will also aim to offer other options and to consider stated preferences, if different from the above. It should be noted that the question of the suitability of the alternative employment is objective. However, the question of whether a refusal of suitable alternative employment by a member of staff was reasonable or unreasonable is subjective. When considering the reasonableness of a refusal, the member of staff s individual circumstances must be taken into account, as well as their subjective perception of the alternative job, which has been offered. Where an organisation creates a new post and it has staff identified as being at risk of being displaced from their post or under notice of redundancy, the post will not be advertised via a process of open competition until it has been established that it does not provide suitable employment for displaced staff or other staff currently seeking redeployment, via the redeployment register. Where more than one member of staff is at risk of being displaced from their post or is under notice of redundancy from a similar post, and there is one post Page 17 of 53

18 identified to provide suitable alternative employment, only these staff will be given the opportunity to apply for the post, in accordance with the normal selection procedures. A member of staff who accepts a post, which differs in some important respect(s) from their expressed preference, may ask to be considered for subsequent redeployment to a more suitable position. In so far as is practicable and consistent with the organisation s general redeployment policy, such individuals will be given consideration in filling an agreed position, which subsequently falls vacant. Where this procedure is followed but the member of staff fails to respond to a redeployment offer, the member of staff shall be deemed to have refused suitable alternative employment. Should a member of staff refuse a suitable alternative job offer, as described above, they must understand and be advised that the organisation may not be able to offer them any other post. The organisation may therefore be obliged to terminate their employment and in such circumstances the member of staff will lose any right to a redundancy payment Trial Periods Where an at risk member of staff is considering transfer to an alternative position they may, by agreement, be allowed to accept such a post for a 'trial period' under the provisions contained in Section 138 (3) of the Employment Rights Act (1996). Account should be taken of the requirement to make reasonable adjustments for disabled staff must be fully considered. In accordance with the statutory redundancy rules, a member of staff is entitled to a four week trial period. Any trial period arrangements should be agreed, in writing before the member of staff begins work under the new contract. The member of staff should also be provided with details of the assessment that will apply during and / or at the end of the agreed and defined trial period. The employer and the member of staff may agree to a trial period of longer than four weeks, in limited circumstances. Any such extension must be given to retrain the member of staff for employment in the new job. An agreement for an extended trial period must also: Be in writing and be agreed before the member of staff begins work under the new contract; State the date on which the retraining will finish, if applicable; and Identify the terms of employment that will apply to the member of staff after the retraining period has finished. Where a trial period is successful, the new terms and conditions of service should apply from the end of the agreed period. The employer should write to the member of staff to confirm their permanent appointment to the post. Where a trial is not successful, as a consequence of practical and reasonable reasons, the member of staff, should, where possible, return to their previous position. Any such unsuccessful trial period will not normally be taken as a refusal of an alternative offer and the organisation will continue to seek alternative employment up to the date on which the redundancy dismissal takes effect. It is recognised that there are often different phases to any reorganisation of Page 18 of 53

19 services or organisations and the ability to retain staff in their original posts may not be possible after a certain date. It is therefore important to ensure that the principles of this Policy are addressed at an early stage, to maximise the redeployment opportunities, which may be available, within the organisation and across NHS Wales Staff not Re-deployed Active steps will be taken to seek to re-deploy staff to suitable alternative posts. Where an organisation cannot find suitable alternative employment for a member of staff at risk of being made redundant it may have to consider making them compulsorily redundant, in accordance with the provisions set out in the Employment Rights Act (1996). If such a situation arises the organisation will utilise the provisions set out in Section 16 of the Agenda for Change Handbook and Appendix 4 of this Policy Rights of Appeal In the case of dispute in respect of offers of suitable alternative employment, associated with organisational change, a member of staff may lodge a grievance, in accordance with the Grievance Policy set out in Appendix 2 of this Policy. 12 Arrangements for Salary Protection 12.1 Definition of Salary Protection This applies to any member of staff who, as a consequence of organisational change, incurs a detrimental change of salary. Staff who are required to move to a different post as a result of organisational change will be entitled to long term protection of salary in accordance with the provisions of their current organisation s policy on protection of earnings, or predecessor organisation if involved in a merger or de-merger. If however the protection arrangements described in this Policy are more beneficial to a member of staff they can choose to opt for the protection arrangements outlined below. The arrangements provide: Long term protection of basic salary where a lower banding is involved; and Protection of certain other conditions of service e.g. pension Short Term Protection of Basic Salary Short term earnings protection will remain in accordance with current or predecessor Welsh NHS Organisations protection policies, until such time as they are replaced by a policy negotiated and agreed on an all Wales basis. A separate partnership negotiating group will be established by the Welsh Partnership Forum, during the spring of 2009, to draft an All Wales short term pay protection agreement. Once approved, these arrangements will be incorporated into this Policy Long Term Protection of Basic Salary This applies in circumstances where a member of staff is moved to a lower banded / graded post as a result of organisational change. Consequently the member of staff would be entitled to full protection of their substantive salary, (including National Recruitment and Retention Premium) with benefits of any Page 19 of 53

20 national pay awards, applying to the original band / grade level for the time periods set out in Table 1 at below Additional increments will not be applied to a member of staff in receipt of salary protection. The benefit continues for the stated period of protection or until any of the following factors prevail: a) the member of staff is appointed to a post in which the normal salary is equal to or exceeds the protected salary; b) the member of staff moves on their own application to a post with another employer; c) the member of staff moves on their own application to a post with a basic d) salary, which is lower than that of the existing post; d) the member of staff retires; or e) the basic salary of the post is equal to, or exceeds the protected salary. If the full period of protection specified in the table above expires before points (a) to (e) above occur, protection will continue on a mark time basis until any of the above factors prevail. Any additional earnings derived from work in the new post will be remunerated at the rate applicable to the new post. When a part time member of staff is moved to a new post and the hours in the new post are the same, or fewer than before, long term protection entitlement will be assessed on the basis of actual hours worked in the new post, paid at the hourly rate, applicable to the previous post. If the hours in the new post exceed hours worked previously, long term protection entitlement will be assessed on the hours worked previously multiplied by the hourly rate applicable to the previous post. Additional hours in the post are paid at the hourly rate applicable to the new post. Staff who are members of the NHS Pension Scheme (with more than 2 years' pensionable service) who are redeployed, through no fault of their own, to a post which attracts a lower level of earnings, may by personal application, preserve benefits in respect of service before the reduction in pensionable salary. Members of staff who wish to preserve their benefits at the higher rate should write to their Payroll Services Manager, within 3 months of the reduction in salary Length of Basic Salary Protection Period [Table 1] Reckonable Service Length of Protection Period After 2 Years Service After 3 Years Service After 4 Years Service After 5 Years Service After 6 Years Service After 15 or More Years Service 6 Months Protection 1 Year Protection 2 Years Protection 3 Years Protection 5 Years Protection 10 Years Protection Page 20 of 53