General Note
NHS Fife acknowledges and agrees with the importance of regular and timely review of policy/procedure statements and aims to review policies within the timescales set out.
New policies/procedures will be subject to a review date of no more than 1 year from the date of first issue.
Reviewed policies/procedures will have a review date set that is relevant to the content (advised by the author) but will be no longer than 3 years.
If a policy/procedure is past its review date then the content will remain extant until such time as the policy/procedure review is complete and the new version published, or there are national policy or legislative changes.
1. FUNCTION
1.1 This policy sets out the arrangements applicable to staff employed by NHS Fife if their current post ceases to exist or is subsequently changed as a direct result of organisational change.
2. LOCATION
This policy applies to all permanent employees of NHS Fife and to those on fixed term contracts with 2 years or more continuous service.
3. RESPONSIBILITY
The responsibility for the application of this policy rests with Line Managers and HR staff.
4.OPERATIONAL SYSTEM
4.1 The aim of this policy is to ensure that those staff who are displaced as a direct result of organisational change are managed in line with the key principles of openness, fairness and equity and in line with the NHS Scotland Policy Statement on Trust Reconfiguration, MEL(1999)7 and which was extended by MEL (2000) 22 to cover all organisational change and was confirmed as continuing in place by HDL (2001) 38. Agenda for Change Organisational Change Pay Protection arrangements were reviewed and a new policy produced as part of the three year Agenda for Change pay deal agreed in 2019 as detailed in PCS(AfC)2019/5, the provisions of which became effective from 1st April 2019. This will continue to support a position where in line with Scottish Government Policy NHS Fife will work to avoid Compulsory Redundancies.
4.2 The purpose of this policy is to ensure that in the event of a proposed Organisational Change, NHS Fife will determine, in partnership, which posts may no longer exist, which may change and any new posts that will be established. Displacement of staff will be kept to a minimum at all times (see Appendix 1).
4.3 Through the adoption of this procedure it is intended to avoid redundancies and retain staff within the organisation.
4.4 Displaced staff will be placed on no detriment organisational change protection in line with the NHS Scotland Policy Statement on Trust Reconfiguration, MEL(1999)7 and which was extended by MEL(2000)22 to cover all organisational change, confirmed as continuing in place by HDL(2001)38 and then further reviewed for staff on Agenda for Change terms and conditions of service by PCS(AfC)2019/5. The protection afforded under organisational change protection will cease if the postholder chooses to change job / hours or chooses to leave the employment of NHS Fife.
4.5 Where an employee on Agenda for Change organisational change pay protection secures a promoted post or where their post is regarded (in the same role) they will be placed on a pay point that takes into account their protected earnings to ensure there is no detriment.
If the protected earnings exceed the top of the new payscale they will move to the top and the balance of protected earnings will be paid on a mark time basis.
4.6 If protection of earnings is in place the search for suitable alternative employment which will remove or reduce the need for protection will continue (see Appendix 2). Should the individual unreasonably refuse to move to this post they will no longer be entitled to protection and will receive the remuneration, terms and conditions of the post they occupy.
4.7 Any grievance about the application of this procedure should be raised through the NHS Scotland Workforce Grievance Policy.
5. RELATED DOCUMENTS
Appendix 1 – Guidance on the Filling of New Posts
Appendix 2 – Guidance on Suitable Alternative Employment
Appendix 3 – Guidance on Redundancy / Premature Retirement
Appendix 4 – Guidance on Agenda for Change Organisational Change Protection
6. REFERENCES
MEL (1999) 7
MEL (2000) 22HDL(2001)38
PCS(AfC)2019/5
Other relevant HR Policies
AFC Terms & Conditions Handbook
Consultant T&C’s
Medical & Dental T&C’s
APPENDIX 1
GUIDANCE ON FILLING POSTS
Communication is essential at as early a stage as possible involving staff side and HR when there is the potential for an organisational change situation that may displace staff.
The reasons for an Organisational Change need to be communicated, identifying the number and description of employees likely to be affected.
Staff will be deemed to be displaced if they hold a permanent contract or a fixed term contract which meets relevant criteria set in line with NHS Fife’s Fixed Term Contracts Policy and fall into one of the following categories:
- They occupy a post which no longer exists.
- They occupy a post which will significantly change.
Displaced staff will be formally notified in writing that they are deemed to fall into this category and will be consulted so as to determine what posts (new or existing / future vacancies) may be defined as suitable alternative employment as per the Redeployment policy.
Objective scoring criteria needs to be agreed in partnership. Criteria should be precisely defined and capable of being applied in an independent way. This is to ensure that people are not selected unfairly. The chosen criteria must be consistently applied and be objective, fair and consistent. Basing any selection on skills or qualification will help to keep a balanced workforce appropriate to the future needs of the NHS Fife.
Include factors such as:
- Skills
- Qualifications
- Experience
- Knowledge
- Training
- Versatility
- Flexibility
- Attendance (taking in account Equality Act – not being discriminatory, eg, maternity related absence / disability related absence)
- Disciplinary record (ensuring fully accurate / current disciplinary only)
- Standard of work performance (eg appraisal based)
- Ability to Redeploy
Individual meeting to agree detail being added against criteria where person has opportunity to be represented and to query the information being used.
Displaced staff will be eligible to apply for new posts within the revised structure of their department across all sites within NHS Fife in the first instance. In addition, applications will be restricted initially to displaced staff within the department who are on the same grade as the new post.
Displaced staff on a higher grade may apply under restricted competition after it has been established that there are no appropriate displaced staff on the same grade for whom the post would be a suitable alternative.
Those who are on a lower grade cannot apply under the restricted competition arrangements and can only do so under open competition.
Where there is only one suitable displaced applicant the post will be filled by “slotting in” the individual.
Appointments of displaced staff will be in accordance with NHS Fife’s Redeployment Policy.
Where there is a new post or vacancy and there are no suitable displaced staff within the same department, the post will be available to suitable displaced staff elsewhere in NHS Fife in line with NHS Fife’s Redeployment Policy. If no suitable appointment can be made under these arrangements then the post will be advertised in line with NHS Fife’s Recruitment & Selection Standards and then on an open competition basis. Displaced members of staff from the NHS in Scotland will be given priority over other external applicants in line with NHS Fife’s Redeployment Policy and if certain criteria are met.
Any existing posts which fall vacant or are permanent posts filled by temporary staff will be made available for displaced staff before being advertised on an open competition basis.
APPENDIX 2
GUIDANCE ON SUITABLE ALTERNATIVE EMPLOYMENT
NHS Fife’s Redeployment Policy provides full details of the Redeployment Process within NHS Fife. Whilst redeployed staff under organisational change will be fully protected in accordance with Paragraph 4.1 of MEL (1999) 7, the aim should nevertheless be to retain staff in posts which are at a comparable grade / earnings level to that which they currently enjoy and to a post which as far as possible utilises the skills, knowledge and experience that the individual possesses.
To this end, where an individual is redeployed to a post entitling the individual to protection of earnings, management will be proactive in continuing to secure future suitable alternative employment which will remove or reduce the need for protection.
Should the individual unreasonably refuse to move to this post they will no longer be entitled to protection and will receive the remuneration and terms and conditions of the post that they occupy.
Determining whether or not an alternative post is suitable and whether or not the individual has behaved unreasonably in turning a post down will include consideration of what is reasonable in terms of the individual’s personal circumstances in line with NHS Fife’s Redeployment Policy.
Where there is concern either by the manager or the displaced member of staff as to the suitability of a post a trial period of normally 4 weeks will take place. This trial period may be extended if it is considered to be appropriate in line with NHS Fife’s Redeployment Policy.
Should an individual unreasonably turn down a suitable alternative post and no other suitable alternative post can be found for them to accept then the individual will be deemed to have terminated their employment in line with NHS Fife’s Redeployment Policy.
Excess travel will be paid for a period of 4 years in line with Agenda for Change Terms and Conditions, which is the difference between home and old base and home and new base paid at the reserved rate for Agenda for Change staff.
The arrangements for Medical and Dental staff for excess travel are covered in the Medical & Dental Terms and Conditions of Service.
APPENDIX 3
GUIDANCE ON REDUNDANCY / PREMATURE RETIREMENT
As part of any organisational change process, if there are no suitable alternative posts available within NHS Fife, the details of the displaced member of staff will be circulated to other appropriate NHS employers. The individual will be kept fully informed of potential suitable alternative posts elsewhere in the service in line with the Redeployment Policy.
Applications for Voluntary Redundancy / Premature Retirement will not be sought. Should requests for Voluntary Early Retirement with Employer’s Consent be received they will be considered in the light of all the circumstances in each particular case including value for money considerations.
None of the above prevents members of the Scottish Public Pensions Agency Scheme from taking Voluntary Early Retirement on Reduced Pension, which is open to certain members of the Scheme from age 50.
Further information on Scottish Public Pension Agency can be found on www.sppa.gov.uk
APPENDIX 4
GUIDANCE ON AGENDA FOR CHANGE ORGANISATIONAL PAY PROTECTION
What is Organisational Change?
Organisational Change for the purpose of pay protection is defined as follows:
a change made by management or the organisation that has an impact on the employee’s contractual earnings
or
where management or the organisation requires to redeploy the employee into a lower banded post.
Where such change occurs, organisational change protection will apply. Protection should be on a no detriment basis.
Managers should avoid making temporary changes to working hours and patterns which through default become long term and may therefore result in protection of earnings (e.g. overtime working which becomes the norm).
What is no detriment protection?
No detriment means that the employee will not be worse off financially as a result of the change. In addition, annual pay uplifts and increments will continue to be applied appropriately.
The employee should not be any better off as a result of such change either.
What is protection applied to?
Protection is applied to what changes as a result of the organisational change so, for example, if the changes is in regard to shift patterns, then the part of the pay that should be protected will be in relation to the shift changes.
How are protection arrangements made?
Managers must alert NHS Fife’s Pay Office at the earliest opportunity of the possibility of protection being required in order that this can be planned for.
In order to ensure consistency, a reference period of 12 months should be applied when calculating the level of earnings to be applied. This should be adjusted accordingly for employees on long term sickness absence or maternity leave or for any other exceptional circumstance.
To allow for protection calculations to be made and notification of the arrangements to be confirmed in a timely manner, the 12 month reference period should commence 15 months before the change takes effect. So if the change is effective from 1st July 2021, the 12 month reference period will be 1st April 2020 to 31st March 2021.
How will the employee know what their protection is?
Protection arrangements will be confirmed to the employee in writing along with guidance on how protected earnings are to be applied and arrangements for working up to the level of protection.
What happens where protection of band / grade is required?
Where an employee requires to be protected at their grade as a result of organisational change, they will be redeployed into suitable alternative posts as soon as possible in accordance with NHS Fife’s Redeployment Policy HR16.
Employees who unreasonably refuse suitable redeployment into a post at the level of the protected grade will forgo their right to protection at that grade.
What happens if an employee receiving Agenda for Change protection of earnings is promoted/ their post is regraded to a higher band?
Where an employee on Agenda for Change pay protection secures a promoted post or where their post is regarded (in the same role) they will be placed on a pay point that takes into account their protected earnings to ensure there is no detriment.
If the protected earnings exceed the top of the new payscale they will move to the top and the balance of protected earnings will be paid on a mark time basis.
What happens when an employee in receipt of Agenda for Change pay protection of earnings works additional hours or overtime?
Additional hours and overtime will not be offset against protection unless the protection is related to contractual overtime or additional hours.
What is working up?
If an employee is on protection they can be asked to undertake additional duties connected with the reasons for their original protection up to the level of their protected pay.
What if an employee does not want to work up?
Any individual who, once they have received their confirmation of protection arrangements, makes a decision that they do not wish to work up to the level of protection as described can opt to forgo their right to protection of earnings.
Any individual who unreasonably refuses to work up to the previously agreed level of protection will forgo their right to protection of earnings.
The following principles should be applied when working up arrangements are being made for staff on Agenda for Change terms and conditions:
For Agenda for Change Staff Protected for On-Call Payments (including availability supplements and call outs)
If the employee works on-call and the frequency of on-call reduces the employee is protected at the higher frequency of on-call. However the employee can be asked to work up to that higher level if there are gaps to be filled due to increased demand or staff absences. This can be at their own site or another site.
If the employee is no longer required to work on-call they will be protected for oncall, however they may be required to work on-call at another site due to staff absences or increased demand.
Staff will be paid according to the duration of call-out including actual travel time, rounded up to the nearest 15 minutes. The call-out time will be calculated from when the member of staff leaves home (or other agreed base) to when they return home (or other agreed base). In addition paragraph 8.3 also states that “Work undertaken from home, either by telephone or online, will attract payment for work done according to the actual duration of the period of work”.
Shift Pattern Changes and Change in Hours
If the employee works on a shift pattern that changes as a consequence of organisational change and their shift payments are reduced, the employee can be asked to work up to their level of earnings if there are any gaps in the shift due to increased demand or staff absences. Staff would not be expected to work beyond their contracted hours but may be required to work a higher level of unsocial hours (as per their protected salary). However, if staff agree to work beyond their contracted hours they would be paid as per Agenda for Change Terms and Conditions.
In situations where there are significant changes to rota, NHS Boards should try to redeploy staff into posts which reduce the reliance on protection in order to stabilise the employees’ working pattern.
If an employee’s contractual hours of work are reduced they will be entitled to organisational change protection. However, the employee can be asked to work up to their contractual hours if there is increased demand or staff absences.
If an employee has their contractual overtime stopped or reduced they will be entitled to organisational change protection. However, the employee can be asked to work up to their level of contracted overtime.
Working on Different Sites
Employees on protection can be asked to work at different sites within reason and with reasonable notice.
For staff required to work at another site other than their home base, line managers must ensure that the individuals are competent to work on the different site and have received appropriate induction/orientation training. Staff will be entitled to travel costs as per Agenda for Change terms and conditions.
