The use of the Retention of Employment (ROE) Model will be greatly restricted from 1 July 2009. This could have significant implications for all NHS Trusts and particularly for Foundation Trusts. From 1 July 2009 access to the NHS Pension Scheme (NHSPS) will only be available for employees seconded under a ROE arrangement made after 13 January 2009 where specifically approved by the Secretary of State.
The use of the Retention of Employment (ROE) Model will be greatly restricted from 1 July 2009. This could have significant implications for all NHS Trusts and particularly for Foundation Trusts.
From 1 July 2009 access to the NHS Pension Scheme (NHSPS) will only be available for employees seconded under a ROE arrangement made after 13 January 2009 where specifically approved by the Secretary of State.
ROE is a form of secondment which allows employees who are to be transferred under TUPE from an NHS employer to object to the transfer of their employment (which brings their employment with the NHS Employer to an end). These employees are then re-employed by the NHS employer but seconded to work with the non-NHS employer under the ROE model. As a result, they remain employees of the NHS and retain access to the NHS Pension Scheme.
Currently, ROE is only approved by the Secretary of State in two specific circumstances:
In addition, Foundation Trusts have the freedom to enter into
ROE arrangements without the explicit consent of the Department of
The Department of Health's view is that ROE has been widely used by NHS organisations (particularly by Foundation Trusts) to allow employees who would normally have transferred to non-NHS employers to instead remain with their NHS employer and continue NHSPS membership. This enables the non-NHS employer to avoid the requirement to set up a broadly comparable pension scheme under Fair Deal but ultimately at the taxpayer’s expense.
As we previously reported this led the Department of
Health to write to all Chief Executives in the NHS on 13 January
2009 informing them that staff employed under non-approved
applications of the ROE model from 13 January 2009 would not be
eligible for membership of the NHSPS from a date to be appointed.
Only staff who met the approval criteria would have access to or
continue to have access to the NHSPS.
These proposals have now been given statutory force by amendments to the National Health Service Pension Scheme Regulations 1995 and 2008. The amendments ensure that NHS staff who are seconded to non-NHS organisations for the purpose of performing duties that have been transferred to that organisation under the ROE model may only continue membership of the NHSPS in two specific circumstances approved by the Secretary of State; even if the ROE arrangement is made by a Foundation Trust. There is no longer automatic approval for Foundation Trusts.
1 Retention of Employment where the NHS employer enters into a ROE arrangement after 13 January 2009 intending to retain the services of employees who would otherwise transfer to a non-NHS employer under a TUPE transfer but who object to that transfer. This also covers a transfer from a NHS employer to another employer in the public sector by virtue of an arrangement broadly equivalent to a TUPE transfer e.g. transfer within prison service or from PCT to Foundation Trust
2 Subsequent secondments – where employees are seconded from an NHS employer to a non-NHS employer after 13 January 2009 and the purpose of that secondment is, in the opinion of the Secretary of State, for the seconded employee to assist in work which was previously transferred to the non NHS employer under TUPE.
In essence, this covers employees who were covered by a transfer
of services to a non-NHS employer but who objected to the transfer
and were seconded instead and also employees who were not part of
the original transfer but are seconded at a later date. In
all these cases Secretary of State approval will be required.