SECONDARY EMPLOYMENT POLICY

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1 SECONDARY EMPLOYMENT POLICY Document History Date Issued December 2016 Version Number: 1 Status: Developed by: Policy Sponsor: Policy Area This Policy will impact on: Consultation: Approved by Committees: Final Arden & GEM HR Business Partners Director of Corporate Development Chief Nurse HR All staff Working Partnership Forum Senior Management Team Quality and Risk Committee Date approved: 12 th December 2016 Date to be reviewed Revision History April 2019 or if legislation changes Version Revision date 0.1 February 2016 Cathryn Taylor, HR Business Partner If you need help accessing this document it is available on request in other formats (for example large print, easy read, Braille or audio versions) and languages. Please call the Communications & Engagement Team

2 ASSISTANCE WITH THE APPLICATION OF THIS POLICY AND UPDATES This policy has been prepared so as to reflect the law as at 1 November The policy will require periodic review to reflect subsequent changes to the law. Changes to employment law have generally been made on 1 February, 1 April and 1 October in any given year. For advice and assistance in relation to the application of this policy and to obtain updates please contact: Your line manager in the first instance or Arden & GEM Human Resources Business Partners. This policy has been prepared by NHS Mansfield and Ashfield Clinical Commissioning Group and NHS Newark and Sherwood Clinical Commissioning Group in partnership with Arden & GEM Human Resources Business Partners.

3 Contents SECONDARY EMPLOYMENT policy POLICY STATEMENT EQUALITY STATEMENT PRINCIPLES PROCEDURES MONITORING AND REVIEW DUE REGARD...10 Appendix NOLAN PRINCIPLES...11 Appendix Individual Agreement to Opt Out of the 48 Hours Average Weekly Limit...12 Appendix Secondary Employment Declaration Form

4 1. POLICY STATEMENT 1.1 It is recognised that some employees employed by the Clinical Commissioning Group may undertake other employment or work with a different employer or may seek to do so at some stage during their employment with the Clinical Commissioning Group. 1.2 Employees are not precluded from having Secondary Employment (defined at paragraph 3.2 below). However their employment with the Clinical Commissioning Group must take priority and it is a contractual requirement that they do not undertake any outside employment activities that may prevent the exercise of their responsibilities within their Clinical Commissioning Group role or create a conflict of interest with the Clinical Commissioning Group business, policies or activities, including self-employment or voluntary work. 1.3 This policy outlines the responsibilities of the employee and their line manager when an employee is engaged in or seeks to engage in Secondary Employment. 1.4 The term Secondary Employment in this policy covers: paid employment outside of the Clinical Commissioning Group; voluntary work outside of the Clinical Commissioning Group which may impact on an employee s work; self-employment; reservist occupations; bank/locum/agency work outside of the Clinical Commissioning Group; bank/locum work or an additional post within the Clinical Commissioning Group. 1.5 A full definition of Secondary Employment is included at paragraph 4.1 below. 1.6 The purpose of the policy is to: ensure that employees do not engage in Secondary Employment that conflicts with or affects their duties under their contract of employment with the Clinical Commissioning Group; support managers and employees in upholding legislation on working time/hours, including total hours worked, breaks between shifts and annual leave. 1.7 Before accepting any new Secondary Employment, employees must complete the Secondary Employment Declaration Form in Appendix 3 and discuss this with their line manager. Employees must have permission from their manager agreed prior to accepting any Secondary Employment. Permission will not be unreasonably refused (see paragraph 4.5) and all requests will be considered in line with The Nolan Principles in Appendix This policy applies to all employees employed by the Clinical Commissioning Group. 4

5 2. EQUALITY STATEMENT 2.1 The Clinical Commissioning Group aims to design and implement policy documents that meet the diverse needs of our services, population and workforce, ensuring that none are placed at a disadvantage over others. It takes into account current UK legislative requirements, including the Equality Act 2010 and the Human Rights Act 1998, and promotes equal opportunities for all. This document has been designed to ensure that no one receives less favourable treatment due to their personal circumstances, i.e. the protected characteristics of their age, disability, sex (gender), gender reassignment, sexual orientation, marriage and civil partnership, race, religion or belief, pregnancy and maternity. Appropriate consideration has also been given to socio-economic status, immigration status and the principles of the Human Rights Act. 2.2 In carrying out its function, the Clinical Commissioning Group must have due regard to the Public Sector Equality Duty (PSED). This applies to all activities for which the Clinical Commissioning Group is responsible, including policy development, review and implementation. 3. PRINCIPLES 3.1 The background of the policy is to adhere to best practice in regards to circumstances where an employee is engaged in or seeks to engage in Secondary Employment and to protect the interests of the Clinical Commissioning Group, its employees and service users. 3.2 For most employees who undertake additional employment there will be no undue impact or effect on their role with the Clinical Commissioning Group. The Clinical Commissioning Group as an employer, however, has a duty of care to all employees and service users to ensure that work is carried out at all times safely and effectively. In order for the Clinical Commissioning Group to take all reasonable steps to ensure that service provision and the interest of the Clinical Commissioning Group, employees and service users are not adversely affected it is important that management is aware of and authorise Secondary Employment so that the impact can be monitored. 3.3 The Working Time Regulations state that employees should not work more than 48 hours in any one week, taken as an average over a relevant reference period. Hours worked outside of the Clinical Commissioning Group should also be taken into consideration when monitoring the working hours of employees. This includes the assessment of total working hours, whether there are adequate periods of rest between periods of work and periods of annual leave. 3.4 The awareness of employee availability may be necessary for the planning of services and allocation of work, particularly where shift patterns are worked. However, the employment with the Clinical Commissioning Group must take priority and any Secondary Employment must not prevent the exercise of an employee s responsibilities with their Clinical Commissioning Group role. 4. PROCEDURES 4.1 Definitions of Secondary Employment Secondary Employment means any paid or unpaid employment or work with another employer besides the Clinical Commissioning Group as defined by the Working Time 5

6 Directive Policy. This includes any work in or on behalf of a business owned by the employee or a member of their family. Secondary Employment includes but is not limited to: paid employment outside of the Clinical Commissioning Group; voluntary work outside of the Clinical Commissioning Group which may impact adversely on the employee s work; self-employment; reservist occupations; bank/locum/agency work outside of the Clinical Commissioning Group; bank/locum work or an additional post within the Clinical Commissioning Group. For the purposes of this policy any additional work or employment is considered as secondary to the Clinical Commissioning Group employment even when the post may not be considered by the employee as their main or primary employment. 4.2 Declaring Secondary Employments: New Employees All new employees have a contractual requirement to inform their line manager in writing of any Secondary Employment they have, including the nature of the job, the hours and the pattern of work. This includes any work that may be required in or on behalf of a business owned by the employee or a member of their family. In addition, any second employment must be declared on the Secondary Employment Declaration Form All new employees should obtain permission for the Secondary Employment from their line manager All declarations of Secondary Employment will be held by the manager. The employee is expected to discuss the nature of the Secondary Employment with his/her line manager. 4.3 Declaring Secondary Employments: Existing Employees Any existing employee either seeking to obtain Secondary Employment or currently engaged in Secondary Employment should discuss the nature of this with their line manager and should also complete the Secondary Employment Declaration Form All employees should obtain permission for the Secondary Employment from their line manager. 4.4 Updating the Declaration of Secondary Employment Form The Declaration should be updated as necessary and the line manager should be kept informed of any new Secondary Employment or changes such as new activities, hours of work or working patterns that may have a different impact on the Clinical Commissioning Group role Where the amendment has a different impact on the Clinical Commissioning Group role the employee should obtain permission from their line manager to the amendment. 4.5 Obtaining Permission to Engage in Secondary Employment Permission to engage in Secondary Employment will normally be granted if the following conditions are satisfied: 6

7 4.5.1 working hours for the Secondary Employment are conducted entirely outside of the Clinical Commissioning Group contracted hours of work; the Secondary Employment is not in competition with the Clinical Commissioning Group's business and does not affect the business by, for example, loss of business or the passing on of confidential information; the employee provides the Clinical Commissioning Group with the name and address of the other employer or organisation, an outline of the job role they wish to undertake and the hours they intend to work; the work is not inherently hazardous or likely to put at risk the employee, other employees or patients. Employees are reminded that sick pay is not payable for an absence caused by injuries sustained whilst working for another employer and may affect their rights to other NHS benefits; the requirements of the working time regulations are met (including appropriate rest prior to commencement of work for the Clinical Commissioning Group); if staff are signed off unfit for work that means all work - including secondary employment and voluntary work must not be undertaken. 4.6 Working Time If the additional hours worked in the Secondary Employment mean that the employee works on average more than a total of 48 hours per week (over a rolling 17 week reference period) they may have to either sign an opt out agreement or reduce the number of hours they work. The opt-out is attached at Appendix 2. Whilst employees may choose to agree to work more than the 48 hours average weekly limit, anyone who chooses not to work in excess of the limit will not suffer detriment Some elements of Secondary Employment may not need to be taken into account for the purposes of working time. Work excluded would generally include unpaid voluntary activities such as community or charity work, this will need to be considered with an employee s line manager and, where necessary, advice should be sought from Arden & Greater East Midlands Commissioning Support Unit Human Resources (Arden & GEM CSU HR) If, through monitoring, the Clinical Commissioning Group are aware that an employee is working in excess of the 48 hour limit on average working time (based on a 17 week reference period) and has not signed an opt-out agreement, this may necessitate a reduction in working hours. In such cases, the Clinical Commissioning Group would wish to meet with the individual to discuss options. It is the employee s choice whether to opt out of the 48 hour limit Employers cannot force an employee to sign an opt-out. Any opt-out must be agreed. Employees cannot be fairly dismissed or subjected to detriment for refusing to sign an opt-out. 4.7 Impact on Performance Where Secondary Employment appears to be having a detrimental impact on an employee s performance of their role within the Clinical Commissioning Group the manager will discuss this with the employee and may invoke formal procedures. 7

8 4.8 Failure to Declare Alleged breaches of this policy will be investigated under the terms of the Clinical Commissioning Group s Disciplinary Policy In circumstances where fraud is suspected, agreed Liaison Protocols between the Clinical Commissioning Group HR Team and the Counter Fraud Specialist (CFS) follow recommended guidance set out by NHS Protect. The Local Counter Fraud Specialist s report may be used to inform a disciplinary investigation Any concerns or suspicions about fraud bribery or corruption relating to Secondary Employment must be reported to the group appointed Counter Fraud Specialist - please refer to the Fraud, Bribery and Corruption Policy for contact details. Any suspicions or concerns of acts of fraud or bribery can also be reported online via or via the confidential NHS Fraud and Corruption Reporting Line on This provides an easily accessible and confidential route for the reporting of genuine suspicions of fraud within or affecting the NHS. All calls are dealt with by experienced trained staff and any caller who wishes to remain anonymous may do so. 4.9 Objectives Where the total hours worked give cause for concern about the employee s ability to effectively perform their normal duties, the line manager will arrange to meet informally with the employee concerned to discuss the options available to them If there are any fundamental changes to the terms of either employment, permission must be reconfirmed in writing from their line manager The Clinical Commissioning Group retains the right to withdraw permission at any time after consultation with the employee. The employee will have a right of appeal against this decision through the Clinical Commissioning Group s Grievance Policy Retraction of Permission to Undertake Secondary Employment There may be circumstances where it is necessary for the Clinical Commissioning Group to retract its permission for an employee to undertake Secondary Employment. These circumstances include but are not limited to: Attendance/Time Keeping Where attendance or time-keeping is of concern and is attributable to Secondary Employment, the Clinical Commissioning Group reserves the right to retract any permission given to an employee to undertake secondary employment Capability/Performance Managers must monitor the performance of their employees. If performance falls below acceptable standards and the capability procedure has been invoked the Clinical Commissioning Group reserve the right to retract any permission given to an employee to undertake Secondary Employment if the Secondary Employment is deemed to contribute to the poor performance. 8

9 Conflict of Interest (a) (b) (c) (d) 4.11 Sickness Absences There may be times where a conflict of interest arises that did not previously exist when an employee was appointed or when permission was originally given by the Clinical Commissioning Group for an employee to undertake Secondary Employment. Employees have a responsibility to highlight any new potential conflict of interest that arise or may arise with their manager. The manager must assess the risk of the potential conflict of interest and if anything can be put in place to prevent the conflict of interest (e.g. removing the employee from a certain project, etc.). If this cannot be avoided and the risk to the Clinical Commissioning Group and Service Delivery is too high, permission to undertake Secondary Employment may be retracted. Where it is felt that a conflict of interest between the employment with the Clinical Commissioning Group and the Secondary Employment is arising, advice will be sought from Arden & GEM CSU HR Business Partners with a view to possible withdrawal of permission to carry out the secondary or other employment. This course of action would only be taken after consultation with the employee. The Employee has the right to invoke the grievance procedure if they feel that a decision to retract this permission is not justified. For further information on conflicts of interest please see the Standards of Business Conduct and Managing Conflicts of Interest Policy Where an employee is absent from Clinical Commissioning Group duties due to sickness absence and has a medical certificate from a GP/hospital/consultant stating unfit for work, it means ALL work not just the main job cannot be undertaken i.e. you cannot attend your main job at the Clinical Commissioning Group; your volunteer work nor your secondary employment etc. If a medical certificate from GP/hospital/consultant says capable of certain/limited work i.e. the GP has discussed it with the employee and that a medical certificate has been issued only then would it be a matter for Occupational Health to look at and decide with the employee/employer doctor etc. if the person can do amended duties at the main job Failure to adhere to this policy whilst on sick leave may result in disciplinary action which could lead to dismissal. It may also be considered as fraudulent activity by the Local Counter Fraud Specialist; and action taken in accordance with the Clinical Commissioning Group s Fraud, Bribery and Corruption Policy referred to in above Employees are reminded that sick pay is not payable for an absence caused by injuries sustained whilst working for another employer and may affect their rights to other NHS benefits Annual Leave There is an expectation that employees will use annual leave as leave from work. Employees should only undertake work under their Secondary Employment or for the Clinical Commissioning Group (i.e. on the bank) whilst on annual leave from their substantive post with the Clinical Commissioning Group if prior approval has been given by their line manager. It should be noted that the Clinical Commissioning Group does not encourage this as annual leave is felt to contribute to the health and 9

10 wellbeing of employees and will only be approved in exceptional circumstances or when the Secondary Employment is unpaid voluntary work. When considering if this should be approved, managers should take advice from Arden & GEM CSU HR Business Partners. Under the Working Time Regulations workers are required to take 28 days annual leave including bank holidays, however, employees may be entitled to additional contractual annual leave (pro rata for part time employees) Failure to comply with the Working Time Regulations may result in an investigation in accordance with the Clinical Commissioning Group s Disciplinary Policy and Procedure and may be regarded by the Clinical Commissioning Group as misconduct. Failure to adhere to this policy whilst on disability leave may result in disciplinary action which could lead to dismissal. It may also be considered as fraudulent activity by the Local Counter Fraud Specialist; and action taken in accordance with the Clinical Commissioning Group s Fraud, Bribery and Corruption Policy referred to in above. 5. MONITORING AND REVIEW This policy and procedure will be reviewed periodically by the Clinical Commissioning Group with Arden & GEM CSU HR support in conjunction with Trade Union representatives. Where review is necessary due to legislative change, this will happen immediately. 6. DUE REGARD In carrying out its function, the Clinical Commissioning Group must have due regard to the Public Sector Equality Duty (PSED) of the Equality Act 2010 to eliminate discrimination; harassment; victimisation; to advance equality of opportunity; and foster good relations between the protected groups. This applies to all activities for which the Clinical Commissioning Group is responsible, including policy development, review and implementation. 10

11 APPENDIX 1 NOLAN PRINCIPLES The Nolan Principles are a code of practice about Standards in Public Life which were published by the Government. The Clinical Commissioning Group actively promotes and strives to adhere to the principles which are that all holders of public office (essentially every member of staff): Should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family or their friends. Should not place themselves under any financial or other obligations to outside individuals or organisations that might influence them in the performance of their official duties. Should make choices on merit when carrying out public business, including making public appointments, awarding contracts, or recommending individuals for awards or benefits. Are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office. Should be as open as possible about all the decisions and actions they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands. Have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest. Should promote and support these principles by leadership and example. 11

12 APPENDIX 2 INDIVIDUAL AGREEMENT TO OPT OUT OF THE 48 HOURS AVERAGE WEEKLY LIMIT Under the regulations I am entitled not to work for more than an average of 48 hours per week. In completing this form, I am choosing to opt out of the 48 hour working limit. Please note that rest periods and breaks still apply. Agreement I... hereby give you notice that I am willing to work, more than an average of 48 hours a week (whether this time be spent working for Clinical Commissioning Group or in Secondary Employment). In opting out of the 48-hour limit, I agree that I will not work excessively long hours where this may be a risk to the health and safety of my colleagues, the public or me. This agreement is to remain effective for an indefinite period and I understand that should I wish to terminate this agreement, I can do so at any time by providing my manager with three months written notice of my intention to do so. I also acknowledge that Clinical Commissioning Group may also terminate this agreement by giving me three months notice in writing. Unless it is terminated in this way, this agreement shall remain in force until my employment with Clinical Commissioning Group ends. In addition, in signing this agreement I consent to this data being processed by Clinical Commissioning Group for legitimate business purposes and in accordance with the Data Protection Act Signed by Employee:... (Signature).... (Printed Name) On behalf of NHS Mansfield and Ashfield Clinical Commissioning Group/NHS Newark and Sherwood Clinical Commissioning Group (*delete as appropriate) Signed by Line Manager: (Signature)... (Printed Name) 12

13 APPENDIX 3 SECONDARY EMPLOYMENT DECLARATION FORM I have read NHS Mansfield and Ashfield Clinical Commissioning Group/NHS Newark and Sherwood Clinical Commissioning Group Secondary Employment Policy, and confirm that: I have Secondary Employment in addition to my employment within NHS Mansfield and Ashfield Clinical Commissioning Group/NHS Newark and Sherwood Clinical Commissioning Group (*delete as appropriate). Declaration: I am currently employed in addition to my role as: within NHS Mansfield and Ashfield Clinical Commissioning Group/NHS Newark and Sherwood Clinical Commissioning Group (*delete as appropriate). The details of my Secondary Employment are as follows: Employer: Job Title: Start date of employment: End date of employment: Typical working hours: Typical working patterns: Are you subject to night working within this role: Yes / No Please complete the following section in block capitals. Your name: Job Title: Directorate: Signed: Date: NB: If you currently have any form of bank employment this also need to be declared. 13

14 Declaration I declare that the above information is correct and complete and that Secondary Employment in this instance will not have a detrimental effect on my work at NHS Mansfield and Ashfield Clinical Commissioning Group/NHS Newark and Sherwood Clinical Commissioning Group. I will inform my Line Manager if there are any changes to the above. I understand that providing false information and failing to declare information with regard to this policy may amount to gross misconduct or fraud and may be dealt with accordingly under NHS Mansfield and Ashfield Clinical Commissioning Group/NHS Newark and Sherwood Clinical Commissioning Group Disciplinary and/or Fraud, Corruption and Bribery Policy. To prevent and detect fraud I consent to the disclosure of relevant information from this form to and by the NHS Counter Fraud Service. In addition I consent to this data being processed by NHS Mansfield and Ashfield Clinical Commissioning Group/NHS Newark and Sherwood Clinical Commissioning Group for legitimate business purposes and in accordance with the Data Protection Act NAME: JOB TITLE: SIGNED: DATE: 14

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