Julian Hoskins reports on how the NHS White
Paper, published this month, impacts on workforce matters and
highlights the legal requirements that are likely to be engaged as
the proposals are implemented.
It is unlikely to have escaped your notice that on 12 July 2010
the Health Secretary, Andrew Lansley, introduced the Health White Paper. It sets out the
Government’s plans for the future of the NHS, with the lofty
ambition of making the NHS “the envy of the world”, whilst
reflecting the coalition’s “core beliefs of freedom, fairness and
responsibility.” And all this is to be achieved in the
context of public sector savings of £20billion and a 45% reduction
in NHS management costs by the end of 2014.
The White Paper contains some radical proposals, but is short on
detail; the Government is to consult on the details, so it
remains to be seen how, in practice, the changes in the White
Paper will be put into effect. But the headline changes
are likely to be implemented and preparations for these are being
put in place now. So what are the workforce aspects and what
legal obligations might they trigger?
- All SHA or PCT staff whose jobs are directly affected by these
changes must be afforded the opportunity to discuss the proposals
with their line manager, as set out in Sir David Nicholson’s
‘dear colleagues’ letter dated 13 July
2010. These arrangements should be put in place now as all
staff should have an interview by the end of September.
- Layers of management are to be removed, with a ‘rebalancing’
away from back office staff and towards clinical staffing and
frontline support. It is acknowledged within the White Paper that
staff will lose their jobs. Therefore, formal information and
consultation processes under the Trade Union and Labour Relations
(Consolidation) Act 1992 (TULRCA) will need to take place in
respect of any collective redundancies caused by workforce
reduction. It would also be advisable to enter into
consultation in respect of any reorganisation, even where
dismissals are not anticipated.
- Partnership working is a central theme in the White Paper.
Local authorities will have objectives for improving public health,
and will be required to promote the joining up of local NHS
services, social care and public health improvement. Barriers
between local authority and health funding are to be removed.
These measures are likely to result in staff transfers regulated by
the Transfer of Undertakings (Protection of Employment) Regulations
2006 (TUPE), and are likely to raise particularly complex issues –
for example, in relation to transfers to non-NHS organisations, and
non profit making organisations.
- Responsibility for commissioning healthcare is to pass to GP
consortia at a local level and to a new Independent Commissioning
Board for national and specialist initiatives. Again, this is
likely to trigger the application of TUPE as these functions pass
from large organisations to significantly smaller ones. GPs may
delegate some or all of their functions to external bodies which
may see private sector-led 'super consortia’ emerging.
- Within three years all NHS trusts should become, or become part
of, foundation trusts. There is to be consultation on a
proposal that foundation trusts should be able to merge more easily
and this will cause complex restructure issues. It is also
envisaged that there will be an increase in the number of employee
led organisations, particularly in the area of community
- In future, pay decisions should be led by healthcare employers
rather than imposed by Government. The White Paper sets out
that there will be an expectation that employers will take the lead
on staffing and cost pressures, and also lead negotiations on new
employment contracts. This suggests that there will be a move away
from the current arrangements for nationally agreed terms and
conditions (such as Agenda for Change) although it is anticipated
that many employers will continue to use national contracts as a
basis for local terms and conditions.
- There is to be an independent review of public pensions,
including the effect to which pensions may act as a barrier to
increased diversity of provision of public services. This may
play a key role in determining the terms on which NHS staff will
move (in line with TUPE) to new commissioners and it appears to be
central to the government’s thinking that there should be a much
greater private sector presence in the provision of healthcare. If
the government seek to significantly affect pension entitlements
then this is likely to provoke strong union opposition with the
possibility of industrial action.
- The coalition’s policy on pay restraint is reiterated in the
White Paper: the NHS will be included in a two-year public sector
pay freeze from 2011/12.
- There is also a proposal that the Department of Health should
have a reduced role in overseeing staff education and
- partnership working;
- major workforce reduction and reorganisation; and
- staff transfers
are the three key workforce themes that emerge from the White
Accordingly, the relevant employment law framework will include
- TUPE transfers;
- redundancies (including collective consultation for large scale
- reorganisation; and
- information, consultation and employee engagement on the
- Industrial action if pension entitlements
The Government is issuing further consultation papers on
specific aspects of the proposals set out in the White Paper.
Many of the proposals require primary legislation, most of which
will be implemented through the Health Bill, which will be
introduced into Parliament this Autumn and is expected to receive
Royal Assent next Summer.
Support from Bevan Brittan
Bevan Brittan LLP is the only law firm in the UK which is a
market leader in both the health and local government sectors, as
well as contracting between the public and private sectors; as
such, we are uniquely placed to advise on the collaborative working
and reorganisation which will be required under the proposals set
out in the White Paper.
In order to assist with achieving the £20billion savings
required by the drive for efficiency – of which the White Paper is
a key aspect – we provide a range of products and support:
- training for clients and contacts on key workforce costs saving
/ White Paper topics: partnership working (the TUPE and HR
aspects), redundancy and reorganisation.
- Workforce planning, bespoke advice, toolkits, documentation and
support are also available in relation to all aspects of the legal
obligations and issues that will arise as the drive for efficiency
Please contact Sam Russe-Jones for further details.
As the consultation papers are published, Bevan Brittan will be
producing a series of Alerts which will each examine in detail a
different strand of the White Paper. If you do not already receive
our Alerts, you can sign up by clicking here.
For Bevan Brittan publications on related topics, please
Service Restructuring & Efficiency Savings - Legal
Challenges & Opportunities
Summer of discontent, dealing with industrial
unrest, by David Widdowson
Starting redundancy consultations by Julian Hoskins
Redundancy: the difficult issues by Sarah Lamont