Policies Procedures & Guidelines

Transcription

1 Policies Procedures & Guidelines Policy on Organisational Change Incorporating Redeployment, Redundancy and Protection of Pay Version: 1 Ratified by: Lewisham Joint Staff Partnership Committee Date ratified: September 2006 Name of originator/author: HR Department Date issued: September 2006 Review date: September 2011 Target audience: All staff

2 Version Control Reference LEW/HR/ Policy on Organisational Change Incorporating Redeployment, Redundancy and Protection of Pay LEW/HR/020 Date Approved September 2006 Approving Body JSPC Implementation Date September 2006 Version 2 Supersedes Version 1 Consultation Presented to JSPC Supporting Procedure Review Date September 2011 Lead Executive Author/Lead Manager Further Guidance Human Resources Department HR Manager ACAS, CIPD, DOH and NHS Employers Implementation Target audience Implementation plan in place Tools for dissemination All PCT Staff Yes & Intranet Date of dissemination September 2006 Monitoring Monitoring method Frequency Responsibility Reporting Audit Annual HR Department HR Department Page 2 of 46

3 Equalities Impact Assessment Screening Grid Note: See equalities impact assessment guidance notes on PCT website at before completion. Equality Group Race Disability Gender Age Sexual Orientation Religion or belief Deprivation Dignity and Human Rights Assessment of Impact This policy does not affect any one group less or more favourably than another. This policy does not affect any one group less or more favourably than another. This policy does not affect any one group less or more favourably than another. This policy does not affect any one group less or more favourably than another. This policy does not affect any one group less or more favourably than another. This policy does not affect any one group less or more favourably than another. This policy does not affect any one group less or more favourably than another. This policy does not affect any one group less or more favourably than another. Page 3 of 46

4 CONTENTS 1. INTRODUCTION AND GENERAL PRINCIPLES SCOPE RESPONSIBILITIES STANDARDS FOR IMPLEMENTING GOOD HUMAN RESOURCE PRACTICE AND VALUE FOR MONEY WHEN STAFF ARE AFFECTED BY ORGANISATIONAL CHANGE MANAGING THE ORGANISATIONAL CHANGE STEP 1: Action to minimise the impact of change on staffing levels STEP 2: Consultation with Staff and their representatives...8 General Process...8 Consultation Document...8 Consultation with Recognised staff representatives...9 Notification of At Risk status Consultation Timescales TUPE Consultation (See Appendix 1 for an overview of TUPE) Individual Consultation meetings STEP 3 Selection process for posts in the new structure Aim of the selection process: Matching to Posts (Slotting In) Ring-fenced Competitive Interview Appraisal, Sickness and Disciplinary Records Voluntary Redundancy or Early Retirement STEP 4: Securing suitable alternative employment Defining Suitable Alternative Employment Slot-in Arrangements Offers of Suitable Alternative Employment Suitable Alternative Employment within the NHS Staff on maternity leave Trial Period Managing the Trial Period After the Trial Period Page 4 of 46

5 Where No Suitable Employment can be found STEP 5 Redundancy (please refer to Appendix 7) Notice of Redundancy Redundancy Payments Right to a Redundancy Payment Redundancy Estimates Appeals against Redundancy SUPPORT AND ASSISTANCE AVAILABLE TO STAFF Time off to attend interviews Right CoreCare Application form and interview skills training Pay protection Difficulties incurred through change of work base AGREEMENT, INTERPRETATION AND REVIEW OF THIS POLICY APPENDICES Appendix 1: TUPE - Transfers of Undertaking 21 Appendix 2: Appeals Process 26 Appendix 3: At risk flowchart 28 Appendix 4: Slotting-in criteria 30 Appendix 5: Protection of pay and conditions policy 31 Appendix 6: Consultation document template 35 Appendix 7: Standards for Implementing Good Human Resource Practice and Value for Money when staff are affected by Organisational Change 36 Appendix 8: Claim form for excess travelling expenses in relation to change of work location through organisational change. 45 Page 5 of 46

6 1. INTRODUCTION AND GENERAL PRINCIPLES In meeting both the NHS modernisation agenda and responding to the need to provide a high quality health service the Trust may need to change the way it delivers the service. The Trust will seek to ensure staff are kept informed of changes as they arise and aims, wherever possible, to provide stability of employment. The Trust is keen to retain staff in order to benefit from their skills and experience and to acknowledge the contribution that each member of staff makes. However, change is unavoidable and where posts are affected by organisational change the Trust will ensure that a fair and impartial process is adhered to that will ensure that posts are only made redundant as a last resort. The procedure outlined in this document helps to ensure such fair treatment for all staff affected by organisational change. According to the principles of partnership working, there should be an intention to agree aspects of organisational change in consultation with Staffside. 2. SCOPE This policy applies to all staff directly employed by Lewisham Primary Care Trust. However, trainees, secondments and staff on honorary contracts should be kept informed of all changes covered by this policy. It supersedes any previous policies relating to organisational change and redundancy. Changes brought about by individual lack of capability within a particular job, or because of personal circumstances are not covered by this policy. Reference should be made to the Supporting Performance in Employment Procedure or the Flexibility at Work Policy in these circumstances. Provisions covered by this policy may be subject to change if overridden by Agenda for Change, other nationally negotiated NHS initiatives and guidance or statute. 3. RESPONSIBILITIES In the event of organisational change, the Restructuring Manager will: Ensure that all key stakeholders have been consulted prior to the proposal being drawn up. Stakeholders could be service users, partner organisations etc and may include some staff depending on the nature of the reorganisation. Be responsible for drawing up a consultation document on a proposed new structure Ensure that the proposal is passed to the Chair of Staffside prior to consultation launch Ensure that all affected staff are consulted on the proposed changes ideally with joint management/staffside consultation launch at the earliest opportunity Ensure that the procedures detailed within this policy are followed in all cases. Ensure that affected staff are made aware of support and assistance offered by the Trust (see below) Page 6 of 46

7 Normally the Restructuring Manager would be an Associate Director or Head of Service, however, in cases of change across the whole or a significant part of the PCT, the Chief Executive or a Director could be the Restructuring Manager for the purpose of this policy. The Directorate of Human Resource Management will: Offer expert advice to the restructuring manager on the correct process to be followed to ensure that it is fair and impartial Advise on the structure of the proposal document Ensure that the restructuring manager is sufficiently supported throughout the process and that this policy is adhered to in all cases Provide application and interview skills training where appropriate In the event of a redundancy or early retirement they will ensure that the necessary paperwork is provided to the Remuneration Committee in order that decisions can be made. 4. STANDARDS FOR IMPLEMENTING GOOD HUMAN RESOURCE PRACTICE AND VALUE FOR MONEY WHEN STAFF ARE AFFECTED BY ORGANISATIONAL CHANGE It is necessary to ensure that value for money is achieved in any organisational change process and national guidance has been issued to ensure this. Appendix 7 sets out the process agreed by the Lewisham PCT Remuneration Committee for formally agreeing early retirements and redundancies for Lewisham PCT employees prior to giving notice of termination. The national guidance has been developed with the input of the Department of Health, NHS Employers, HM Treasury and Audit Commission. It is intended to assist all Remuneration Committees in standing up to internal and external scrutiny. Its key driver is to avoid the loss of staff through redundancy wherever possible and to retain valuable skills and experience where appropriate within the local health economy. It supplements the PCT s own Organisational Change Policy which must be followed in all cases. The obligation to try and find suitable alternative employment and avoid a redundancy continues throughout the notice period and if suitable alternative employment is found then notice will be withdrawn notwithstanding that the Remuneration Committee has agreed to the notice being issued as this is consistent with the overall aim of the guidance and the PCTs own Organisational Change Policy to avoid compulsory redundancies. Page 7 of 46

8 5. MANAGING THE ORGANISATIONAL CHANGE 5.1 STEP 1: Action to minimise the impact of change on staffing levels Where it becomes clear that change is necessary the Restructuring Manager will take the following action: Freezing recruitment in the staff groups affected, or other areas identified as similar in nature, by the Management Team Reducing overtime and the use of agency, contractors, bank and locum staff where applicable. Where roles need to be covered urgently, the possibility of internal cover should be explored in the first instance. However, if this is not possible, posts should be filled on a temporary basis e.g. where there is a newly created post that could be filled via a ring-fenced interview at the end of the restructuring process or by a re-deployee, this post should not be recruited to permanently prior to the implementation process. In such circumstances, advice should be sought from Human Resources. Where the manager anticipates or identifies that staff reductions or changes to job content are unavoidable, the manager will liaise with the Directorate of Human Resources Management throughout all steps in the procedure. Every effort will be made to protect existing employees job security and to achieve the required changes by voluntary measures. 5.2 STEP 2: Consultation with Staff and their representatives General Process Staff and Staffside representatives will be consulted regarding the proposed changes. Prior to the consultation launch, proposals should be sent to the Chair of Staffside. Consultation with staff will take the form of open meetings with the affected staff group where management will outline the reasons for the proposed changes and a written draft consultation document will be made available to all staff (see below). Staff Representatives will be invited to attend any open meetings. Notes will be kept of the views put forward by staff at the meeting(s). A reasonable timescale will be established by the manager responsible for the change in consultation with Staffside, within which representatives can consider the proposals, seek views from their members and make representations (see page 8). Formal responses to consultation should be made in writing to the management contact specified in the consultation document. Where such formal responses have been received, the manager responsible for the change will reply, indicating which responses have been accepted and which have not, together with reasons for the non-acceptance. Consultation Document A final consultation document must be produced and consultation established with Staffside via the Staffside Chair. This does not, however, preclude a broader consultation document to act as a catalyst for a full and meaningful discussion of all options prior to a decision being made on the final proposal on which the consultation document will be based. This may Page 8 of 46

9 particularly be necessary in cases of complex, strategic organisation-wide change. The consultation document should contain the following (see also template at Appendix 6): Current departmental structure (including organisational chart and list of affected posts). Rationale for the change including financial information where this is deemed appropriate. The proposed new structure (including organisational chart and list of proposed new posts). The process to be followed including information on which posts will be subject to slotting-in and ring-fenced interviews and any redundancies. Associated risks in the interim period while the change is in process. Management contact. Job descriptions and person specifications to be evaluated (following Agenda for Change guidelines). A timetable with the proposed date for achieving the changes or reductions. Consultation arrangements with Lewisham JSPC and/or staff representatives via the Chair of Staffside. Consultation with Recognised staff representatives In accordance with the recognition agreement where an organisational change is being proposed, the Trust will consult with elected representatives of the Trade Unions and Professional Organisations who represent the staff affected by the proposed changes. In these cases, contact should be made with the Chair of Staffside in the first instance. Any staff affected by the change will be consulted directly in addition to this. The consultation will be undertaken with the intention of reaching agreement on the ways of avoiding any proposed dismissals, reducing the number of employees dismissed and mitigating the consequences of the dismissals. The consultation will provide a forum for providing information to staff and Staffside representatives and discussing the following issues: The reasons for the proposals The number and description of employees affected and, where appropriate, the posts it proposes to make redundant. The total number of employees of this description employed by the Trust. Proposed methods for selecting staff for posts in the new structure, and redundancy if it is not possible for them to secure suitable alternative employment; Methods of carrying out the redundancies and the period over which they will take place. Means of calculating any redundancy payments. These proposals will be confirmed in writing to staff representatives Page 9 of 46

10 Where necessary separate formal consultation meetings will take place with staff side. This may include discussions at the Lewisham Joint Staff Partnership Committee in respect of large-scale change programmes. Notification of At Risk status Staff whose posts are designated as being "at risk of redundancy" will be informed at the beginning of the consultation process that this is the case. Although a member of staff may be at risk of redundancy, this is not notice of termination of employment on grounds of compulsory redundancy. Notice of termination of employment on grounds of redundancy can only be issued after approval from the Remuneration Committee (see Appendix 7) Arrangements will be made for each member of staff affected to meet with the relevant senior manager and a Human Resources representative. They will be advised of their right to be accompanied by their Trade Union Representative, colleague or friend not acting in an official or legal capacity. The employees must arrange their own representation. The employee will be informed of: The reason their post is being made redundant, Their contractual or statutory period of notice, The process that will be followed to select staff at risk of redundancy and to find suitable alternative employment in the event of the member of staff not being selected. Job search assistance Working arrangements during the notice period Consultation Timescales The following statutory timescales for consultation will apply for consultation with staff and their representatives: 1. Where the proposed change does not include making posts redundant, consultation should continue for between clear working days 2. Where it is proposed that between 1 and 19 posts will be made redundant over a period of 90 days or less, a consultation period will commence at least four weeks before the first dismissal takes effect. 3. Where it is proposed that between 20 and 99 posts will be made redundant over a period of 90 days or less, a consultation period will commence at least 4 weeks before the first dismissal takes effect. Where it is proposed that 20 or more employees are to be made redundant over a period of 90 days or less, the Trust will notify BERR using the HR1 form within the above timescales. 4. Where it is proposed that 100 or more posts are to be made redundant over a period of 90 days or less, a consultation period will begin at least 12 weeks before the first dismissal takes effect. Page 10 of 46

11 TUPE Consultation (See Appendix 1 for an overview of TUPE) Consultation takes place in the same way as any other reorganisation, however, the Restructuring Manager has a legal obligation to pass on the following information to Staffside and other staff representatives if there are changes to or redunctions in posts. In addition to this: The fact that there is a transfer happening Approximately when it is happening The reasons why it is happening The legal, social and economic implications for the affected employees The measures which the employer intends to take in relation to those employees (this would included any proposed organisational changes) If no measures will be taken, the fact that there won t be any such measures If the employer is the transferor, the measures, which the transferee envisages that they will take in relation to those employees who are to be assigned on the transfer (e.g. reorganisations proposed by the new employer) If the transferee envisages no measures will be taken then that fact. PLEASE NOTE: The above should be seen as additional to the information described on page 8 under the heading, Consultation with Recognised staff representatives. Individual Consultation meetings In addition to group meetings with staff, each member of staff will be given the opportunity to meet with their manager, a member of the Directorate of Human Resource Management and to be accompanied by their Trade Union Representative, a colleague or friend not acting in an official or legal capacity. Notes will be kept of the meetings. Where a member of staff affected by the review is on annual leave, maternity leave, sick leave or any other authorised leave, separate consultation arrangements will apply which will be agreed between the manager responsible for the change, the employee and their representative. Every effort will be made to ensure that such staff receive any written communications and their views are sought. However the process will not be unreasonably delayed. Such written communications should be sent by recorded delivery. Where a member of staff is on a career break it is their responsibility to ensure that they keep in touch with their department in order that they can be included in any consultation process. Page 11 of 46

12 5.3 STEP 3 Selection process for posts in the new structure Aim of the selection process: The selection process has three key aims: 1. To ensure efficient and effective new structures by appointing those staff that best demonstrate that they meet the skills and experience required for the jobs. 2. To retain the skills and experience of individuals within the service. 3. To fulfil the Trust s responsibility to seek to re-deploy staff who are at risk of redundancy. The purpose of the process is to protect employment whilst ensuring the appointment of the most suitable candidate. The process for selecting staff for posts in the new structure is outlined below. The overall aim will be to ensure that the Trust retains the appropriate balance of skills and experience to deliver the service. The selection process must be applied in a completely fair and impartial manner ensuring that the Trust s Equality and Diversity Policy is fully adhered to. Hosted Departments: At risk staff from LSL Shared Services and other Lewisham PCT hosted departments/bodies providing services to, and jointly funded by, Lambeth, Southwark and Lewisham PCT s can be considered for suitable alternative posts in all three PCT s. Staff working for Lewisham PCT can be considered for posts in their own PCT and LSL Shared Services. Matching to Posts (Slotting In) Slotting in might be appropriate where the following conditions are met: The new post is substantially the same as the old post requiring a similar level of essential skill and any new duties or responsibilities could be undertake by the post-holder (following reasonable training if appropriate). Where a current and new job description and person specification is assessed to be 80% similar and all essential skills are matched, the post may be available for slotting-in. The member of staff meets the requirements for the new post and there is no other employee at risk of redundancy, with the same level of skills and experience, who meets the core selection criteria. Where there is more than one eligible candidate, the post will be open to ring-fenced competition. It would be for the manager responsible for the change, to decide whether it is appropriate to slot-in on the basis of the criteria shown at Appendix 4. However, this decision should be taken in consultation with the employee and their representative with advice from Human Resources. Page 12 of 46

13 A refusal to accept a reasonable offer of being matched to a post may result in the employee's employment being terminated without receiving a redundancy payment. Ring-fenced Competitive Interview Where the number of staff required to carry out a particular type of work has reduced or will reduce the selection will include a formal interview, following short-listing and appropriate selection tests. Vacancies within the affected Directorate will be ring-fenced and available to affected staff within the team in the first instance. Where an at risk employee is not recruited to a ringfenced post, the vacancy can then be advertised to all PCT staff and externally where appropriate. A Human Resources representative should be in attendance on all interview panels. Failure to apply for a post where the post is considered suitable alternative employment may affect a member of staff s entitlement to a redundancy payment. Appraisal, Sickness and Disciplinary Records. The exact selection criteria may differ from reorganisation to reorganisation and will form part of the consultation discussions with Staffside with a view to these being agreed in advance. In common with the reference process for recruitment and selection of staff, consideration of conduct, reliability, performance, personal qualities, timekeeping and attendance records may also be included as part of the selection process for interview. Voluntary Redundancy or Early Retirement Where appropriate the Trust may ask staff at risk of redundancy to indicate if they wish to be considered for voluntary redundancy/early retirement. Such schemes must be agreed by the PCT s Remuneration Committee. They will be agreed on a time-limited basis for particular organisational change processes. If such a scheme has been agreed, quotes setting out potential benefits may be obtained through the HR department. Any requests will be evaluated by management. However, the Trust reserves the right to refuse such a request in order to retain the correct balance of skills and experience and consideration of any potential redundancy and/or capitalised pension costs. However, should there be a need to decide between individuals, such decisions will be made by the Remuneration Committee taking account of the guidance set out in Appendix 7 and any additional guidance agreed as part of the scheme. There will be no right of appeal. Page 13 of 46

14 5.4 STEP 4: Securing suitable alternative employment Any member of staff who is not selected for a post following competitive interview or who is otherwise at risk of redundancy will be considered for redeployment within the Trust to posts that constitute suitable alternative employment. Defining Suitable Alternative Employment Suitable alternative employment can be defined as: 1) Those posts for which an at risk individual can receive prior consideration (i.e. before the post is advertised across the Trust), 2) Those posts which the organisation considers employees must apply for if they are not to risk forfeiting redundancy payments (see criteria below). Suitable alternative employment will protect the rights of individuals to be given prior consideration and will only require them to compete within an appropriate pool for posts within the new department / team structure. It is important that the criteria for determining suitable alternative employment are not defined so rigidly that they prove unworkable or inequitable. For this reason the criteria listed below are provisional and may be amended in consultation with Staffside. The criteria for determining whether a post can be regarded as suitable alternative employment, and therefore whether an employee who is at risk can receive prior consideration, are: 1. The employee must meet the essential requirements of the person specification (including qualifications / experience). Where the employee meets most, but not all the essential requirements, appropriate and reasonable training will be provided. Due to the Trust s commitment to equal opportunities for all staff, advice should always be sought from Human Resources if it is intended that staff be appointed to a post without meeting all the essential criteria. 2. The post in the new structure should not normally result in a significant promotion. This will normally mean that there will need to be a ceiling. A 20% salary increase will be used as a guide. In circumstances where a member of staff disagrees with their exclusion from a specific pool for prior consideration for suitable alternative employment, but inclusion would result in a salary increase above 20%, their post will be evaluated against a benchmark post, which has been included in the pool. Suitable alternative appointment may also be defined as a 20% decrease in salary, however, it should be noted that there is no automatic entitlement to a lower graded post as an alternative to redundancy. Where a suitable alternative post carries a lower salary, the employee will be pay protected according to the rules outlined in Appendix 5. Page 14 of 46

15 For the purposes of this document, salary will be the maximum of the relevant scale or zone. Additional payments such as allowances, enhancements and supplements will be excluded from any calculations. Where a member of staff secures suitable alternative employment in a post with a salary lower than their previous role they will be entitled to receive protection of their salary. For further information on pay protection, please see Appendix 5. Pay Protection. Should an employee not secure a post in the new structure but find suitable alternative employment in a post with a salary less than their previous post, they will be entitled to pay protection in accordance with the policy detailed in Appendix 5. Location. Staff will be expected to take up alternative posts within the Trust, which may or may not be at the same base/location as the individual s previous job. Individual circumstances will be taken into account. (See Support and Assistance on page 19). Any offer should have regard to the employee's personal circumstances; however, employees will be expected to show some flexibility by adapting their domestic arrangements where possible. For claims for excess travelling expenses through organisational change see Appendix 8. Slot-in Arrangements A displaced employee can only be slotted into a post (i.e. without a selection interview) where the slotting-in criteria described in Appendix 4 are satisfied, and where there are no other displaced employees able to fulfil this criteria. Such slotting in will only occur, however, in the case of PCT or LSL Shared Services employees where the suitable alternative employment sits within one of these organisations and where the Director agrees this is appropriate. It is strongly recommended that an informal interview between manager and employee takes place so that there is an opportunity to explore more fully whether the post is actually a suitable alternative. Offers of Suitable Alternative Employment Offers of suitable alternative employment must be brought to the employee s notice, normally in writing before the date of the termination of the contract and with a reasonable period of time for the employee to consider them. The employment should be available not more than four weeks from the effective date of termination, or the termination date extended to accommodate a 4-week trial period. Where the employee fails to make an application or otherwise indicate an interest in being considered for the post, the employee will be deemed to have refused suitable alternative employment and will not be entitled to receive a redundancy payment. Suitable Alternative Employment within the NHS A post in another NHS organisation may be deemed suitable alternative employment and therefore the member of staff accepting this offer will not be entitled to a redundancy payment. Advice should be sought from the HR department in all cases. Page 15 of 46

16 From time to time national or Pan-London restricted recruitment procedures may be adopted. In such circumstances, staff at risk of redundancy will be able to participate in that process. In each case consultation with Staffside will take place on local implementation arrangements. Staff on maternity leave Legislation states that where the employee is on maternity leave while a restructuring takes place, they will be given first refusal of suitable alternative vacancies prior to other employees who have been selected for redundancy. This is the case even where the vacancy arises before the employee has notified the employer of their intended date of return from maternity leave and regardless of whether they are ready to return to work. The post may only be covered on a temporary basis until the employee s return. Trial Period Staff who are redeployed into a post in the new structure will undertake a four week trial period in that post in accordance with the Employment Rights Act A longer trial period may be agreed, for the purpose of retraining the employee for the new employment, or for other reasons agreed in advance. The effect of the trial period is to give the employee a chance to decide whether the new job is suitable without necessarily losing the right to a redundancy payment. The four-week trial period can be extended for retraining purposes by an agreement which is writing, specifies the date on which the trial period ends and sets out the employee s terms and conditions after it ends. If the employee works beyond the end of the four-week period or the jointly agreed extended period any redundancy entitlement will be lost because the employee will be deemed to have accepted the new post. This should be communicated to the employee by the Restructuring Manager when the alternative job offer is made. The manager of the alternative post, in consultation with the restructuring manager will also use the trial period to assess the employee s suitability. Should the new manager wish to end the trial period within the four weeks for a reason connected with the new job, the employee will preserve the right to a redundancy payment under the old terms and conditions. If the dismissal was due to a reason unconnected with redundancy, the employee may lose that entitlement. If, during the trial period, the post is considered by the employee and manager to be unsuitable, then other suitable alternative employment will be sought. If there are no other alternative employment opportunities, the employee will be dismissed by reason of redundancy. If an employee unreasonably refuses to accept or apply for suitable alternative employment, or if they resign or leave during or at the end of the trial period claiming the new post is not suitable they may be entitled to receive a redundancy payment only if the Trust also agrees that the post is not suitable. Where the employee forfeits their right to redundancy under Page 16 of 46

17 these circumstances, the Trust will provide a written explanation as to why the offer is considered suitable and no redundancy payment will be made. Managing the Trial Period At the beginning of the trial period, the manager of the post must agree reasonable work objectives with the employee to cover the 4 weeks. If the employee has any special requirements or need for support in certain areas the employee must make this clear to the manager when these work objectives are agreed. Regular supervision must take place at intervals to be agreed with the employee to measure progress towards the attainment of the agreed objectives. After the Trial Period Where it has been accepted that the post constitutes suitable alternative employment, the offer will be made in writing and will confirm the new terms and conditions of the post. The contract will be effective from the first day of the trial period. In the event of both parties agreeing that the post is unsuitable, the member of staff will receive written notification of this and will receive notice of redundancy, should no other suitable alternative employment be found. The effective date of termination by reason of redundancy will be the last day of the notice period except where the trial period runs past this date. An appeal against selection for redundancy must be lodged within 10 working days of that date. Where No Suitable Employment can be found Once the consultation has been completed and when no offer of suitable alternative employment is possible, so that a compulsory redundancy is likely, a meeting will be convened with the individual (and their representative) to discuss the situation. The Chief Executive, Director of Finance, employing Director and the Director of Human Resources will determine if authorisation to give notice of compulsory redundancy should be made to the Remuneration Committee. This will only be done if the criteria set out in Appendix 7 are met. Once approval has been obtained from the Remuneration Committee notice of termination will be issued. Page 17 of 46

18 5.5 STEP 5 Redundancy (please refer to Appendix 7) Notice of Redundancy When the consultation process has been completed and the implementation process starts an assessment will need to be made as to whether it is possible to make an offer of suitable alternative employment. During this period there will continue to be discussion with the member of staff who is at risk and their representative. Where in the view of the Employing Director, the Director of Finance, the HR Directors and the Chief Executive this is not likely to be possible at this time, then approval will be sought from the Remuneration Committee to issue notice of redundancy to the member of staff. Verbal notice of redundancy will be confirmed in writing and will inform the employee of their right to appeal against selection for redundancy if they are not successful in being appointed to any available new posts in the structure or no suitable alternative employment can be found. The Appeals Procedure is outlined at Appendix 2. In exceptional circumstances, notice may be given in writing only, as an alternative to meeting with the member of staff e.g. if the individual is abroad on a career break. Advice should be sought from Human Resources on whether this would be appropriate. In these circumstances, written notification should be sent by recorded delivery. The search for suitable alternative employment will continue during the notice period. Reasonable time off to attend interviews or undertaking retraining necessary to obtain employment will be approved during this period. Redundancy Payments Where it has not been possible to identify suitable alternative employment, the employee's contract of employment will be terminated by reason of redundancy. Payment will be made in accordance with the individual member of staff's contractual entitlement. The member of staff will be given written details of any outstanding annual leave entitlements and the effective date of the termination of their contract and how to appeal against selection for redundancy (see Appendix 2. Before a redundancy payment is made, employees shall provide written confirmation that, at the date of termination of the contract, they had not obtained or been offered or accepted suitable alternative employment with the NHS commencing within four weeks of the date of termination. They will further confirm that they understand that the payment is made only on this condition and they undertake to refund it if this condition is not satisfied. Any member of staff who is dismissed for reasons of gross misconduct during any notice period or trial period will not be entitled to receive a redundancy payment. Page 18 of 46

19 Right to a Redundancy Payment The Trust will apply the national NHS Redundancy schemes. These are set out in the Agenda for Change Handbook and the Pension Regulations. Transitional arrangement are in place for staff who are part of redundancy exercises which start before 30 September and whose notice of redundancy does not go beyond 30 June The redundancy arrangements applicable to each consultation exercise will be included in the final consultation document. Redundancy Estimates The HR Department should, obtain an estimate of individual redundancy entitlements for those at risk staff who do not secure a post in the new structure. This information will be obtainable from Payroll. Where an employee's contract is renewed, or they are engaged under a new contract of employment with the same organisation taking effect immediately or within four weeks of the end of the notice period, the employee is not regarded as having been dismissed by reason of redundancy when their old contract ended. The dismissal is expunged and no redundancy payment is due. Such an offer to renew the contract or to re engage the employee must be made before the end of the previous employment. This offer may include provisions for a trial period. If an employee resigns for any reason during the trial period, or before their notice of redundancy ends, they forfeit their right to a redundancy payment. Appeals against Redundancy Any member of staff whose contract of employment is terminated by reason of redundancy will have the right to appeal against their selection for redundancy. Any appeal must be made in writing to the Director / Line Manager of the service within 10 working days of the effective date of redundancy (or of notification that the employee has not been short listed) stating the reasons for their appeal against selection. The Appeals Procedure that will operate is attached at Appendix 2. Page 19 of 46

20 6. SUPPORT AND ASSISTANCE AVAILABLE TO STAFF Staff at risk will be informed of the following support and assistance: 6.1 Time off to attend interviews An employee who is given notice of dismissal be reason of redundancy is entitled, before that notice expires, to have reasonable time off during working hours for the purpose of looking for new employment or to make arrangements for training for future employment. All absences for this purpose should be agreed with the line manager and a record made of time given. 6.2 Right CoreCare Any member of staff who is at risk of redundancy or has been issued with notice or redundancy will be informed of how to contact the specialist counsellors at the Employee Assistance Programme, (Right CoreCare) who will be able to provide support. Their number is for counselling, advice & information or for legal or financial advice. Minicom: Application form and interview skills training This will be provided by the Directorate of Human Resource Management. 6.4 Pay protection Should an employee not secure a post in the new structure but find suitable alternative employment in a post with a salary less than their previous post, they will be entitled to pay protection in accordance with the policy detailed in Appendix Difficulties incurred through change of work base Travel costs - If a member of staff is relocated to a new base, any additional travelling costs incurred will be reimbursed for a period of fours years in accordance with Agenda for Change terms and conditions. The excess shall be calculated on the basis of bus fares or standard rail fares or, if the employee travels by private motor vehicle, on the basis of the agreed mileage rates. This will be subject to tax. Childcare costs - If childcare arrangements are affected and the employee incurs extra costs as a result of this, the Trust will reimburse them for the extra amount until alternative arrangements are made up to a maximum of six months after the relocation. Written proof of the extra cost will be required. Working pattern - Should the change of work base cause exceptional difficulties to the employee in fulfilling their working pattern, consideration should be given to adjusting their working pattern within the hours they are contracted to work. This will, however, be at the manager s discretion and will be dependent upon the employee s individual circumstances and service needs. The Flexibility at Work policy gives more detail on flexible working options. Page 20 of 46

21 7. AGREEMENT, INTERPRETATION AND REVIEW OF THIS POLICY Where there is an issue regarding the interpretation of this policy, advice will be sought from the Directorate of Human Resource Management. This policy was agreed between the Trust and the Trade Unions Recognised by the Trust on The policy will be reviewed after 12 months of being in operation and thereafter at regular intervals or sooner should legislation or national policy dictate. This policy may be terminated by three months notice in writing by either side. Page 21 of 46

22 APPENDIX 1 TUPE TRANSFER OF UNDERTAKINGS A guide to the regulations This papers sets out the main requirements of the TUPE legislation and is for information only and to provide general guidance. The Regulations are complex and turn on the facts of each individual case, so advice should be sought from HR on the detailed implications of any proposed transfer. INTRODUCTION Provisions relating to employment rights on the transfer of an undertaking are contained in the Transfer of Undertakings (Protection of Employment) Regulations In addition within the Public sector there is a policy framework covering public sector transfers Cabinet Office Statement of Practice on Staff Transfers in the Public Sector (January 2000) - COSOP. Within the NHS, COSOP is mandatory. This provides TUPE style protections comprehensively to staff whose jobs transfer in the public sector. The Government has published a guide (August 2006) on the regulations which is available from the DTI website. OUTLINE OF REGULATIONS Purpose The Regulations preserve employees' terms and conditions when a business or undertaking, or part of one, is transferred to a new employer. The Regulations have the effect that: Employees employed by the previous employer when the undertaking changes hands automatically become employees of the new employer on the same terms and conditions. It is as if their contracts of employment had originally been made with the new employer. Thus employees' continuity of employment is preserved, as are their terms and conditions of employment under their contracts of employment (except for certain occupational pension rights). Representatives of employees affected have a right to be informed about the transfer. They must also be consulted about any measures which the old or new employer envisages taking concerning affected employees. Page 22 of 46

23 Transfers covered by the Regulations The Regulations apply when an undertaking or part of an undertaking is transferred from one employer to another. The Regulations can apply regardless of the size of the transferred undertaking. Thus the Regulations equally apply to the transfer of a large business with many thousand employees or of a very small one. The Regulations apply equally to public or private sector undertakings. Employer's position in a transfer Under the Regulations, when an undertaking is transferred the position of the previous employer and the new employer is as follows: The new employer takes over the contracts of employment of all employees who were employed in the undertaking immediately before the transfer. An employer cannot just pick and choose which employees to take on. The new employer takes over all rights and obligations arising from those contracts of employment, except criminal liabilities and rights and obligations relating to provisions about benefits for old age, invalidity or survivors in employees' occupational pension schemes. COSOP requires new employers to provide broadly comparable pension schemes. Transfer within the NHS would allow staff to remain in the NHS pensions scheme. The new employer takes over any collective agreements made on behalf of the employees and in force immediately before the transfer. Neither the new employer nor the previous one may fairly dismiss an employee because of the transfer or a reason connected with it, unless the reason for the dismissal is an economic, technical or organisational reason (ETO) entailing changes in the workforce. If there is such a reason then there will be a redundancy situation and the normal organisational change procedures will apply. The new employer may not unless the contract of employment so provides unilaterally worsen the terms and conditions of employment of any transferred employee. The previous and new employers must inform and consult representatives of the employees (see Information and consultation). Disclosure of Employee Liability Information to the Transferee Employer The transferor employer must provide the transferee with a specified set of information, which will assist them to understand the rights, duties and obligations in relation to those employees who will be transferred. This should help the transferee employer to prepare for the arrival of the transferred employees, and Page 23 of 46

24 the employees also gain because their new employer is made aware of the inherited obligations towards them. The information in question is: The identity of the employees who will transfer The age of those employees Information contained in the statements of employment particulars for those employees Information relating to any collective agreements, which apply to those employees Instances of any disciplinary action within the preceding two years taken by the transferor in respect of those employees in circumstances where the statutory dispute resolution procedures apply Instances of any grievances raised by those employees within the preceding two years in circumstances where the statutory dispute resolution procedures apply Instances of any legal actions taken by those employees against the transferor in the previous two years, and instances of potential legal actions which may be brought by those employees where the transferor has reasonable grounds to believe such actions might occur. This information should be given at least two weeks before the completion of the transfer. However, if special circumstances make this not reasonably practicable, the information must be supplied as soon as is reasonably practicable. Employees' position in a transfer When an undertaking is transferred the position of the employees of the previous or new employers is as follows: An employee claiming to have been unfairly dismissed because of a transfer has the right to complain to an employment tribunal. Changes to terms and conditions will be possible if there is an ETO reason. Transferred employees who find that there has been a fundamental change for the worse in their terms and conditions of employment as a result of the transfer generally have the right to terminate their contract and claim unfair dismissal before an employment tribunal, on the grounds that actions of the employer have forced them to resign (i.e. constructive dismissal). Employees may not make this type of claim solely on the grounds that the identity of their employer has changed they must individually demonstrate a significant change to their detriment. Employees employed in the undertaking immediately before the transfer automatically become employees of the new employer, unless they inform either the new or the previous employer that they object to being transferred. In this case the contract of employment with the previous employer is terminated by the transfer of undertaking but the employee is not dismissed (i.e. it is treated as a resignation). Page 24 of 46

25 An employee's period of continuous employment is not broken by a transfer, and, for the purposes of calculating entitlement to statutory employment rights, the date on which the period of continuous employment started is the date on which the employee started work with the old employer. Transferred employees retain all the rights and obligations existing under their contracts of employment with the previous employer and these are transferred to the new employer, with the exception that the previous employer's rights and obligations relating to benefits for old age, invalidity or survivors under any employees' occupational pension schemes are not transferred. Occupational pension rights earned up to the time of the transfer are protected by social security legislation and pension trust arrangements. Redundancy This will be managed in accordance with the agreed Organisational Change Policy. Trade union recognition If the transferred undertaking maintains an identity distinct from the remainder of the new employer's business, the new employer will be considered to recognise an independent trade union, in respect of employees transferred, to the same extent that it was recognised by the previous employer. If the undertaking does not keep its separate identity, the previous trade union recognition lapses, and it will then be up to the union and the employer to renegotiate recognition. Information and consultation Who must be informed and consulted? Staff affected which may be (a) Those individuals due to transfer (b) Their colleagues in the transferor employer whose jobs may be affected but who will not transfer (c) Their new colleagues employed by the transferee whose jobs may be affected by the transfer Where employees who may be affected by the transfer are represented by an independent trade union recognised for collective bargaining purposes, the Employer must inform and consult an authorised official of that union. The responsibility to consult and inform rests with both the new and old employer. What must an employer do? First, the employer of any employee who may be affected must tell their representatives: That the transfer is going to take place, approximately when, and why; The legal, economic and social implications of the transfer for the affected employees; Page 25 of 46