ORGANISATIONAL CHANGE POLICY (HRP 11)

Transcription

1 ORGANISATIONAL CHANGE POLICY (HRP 11) First Issued Issue Version Purpose of Issue/Description of Change Planned Review Date February Planned Review 2011 Named Responsible Officer:- Approved by Date Director of HR Policy File: HR Policies Integrated Governance Committee Impact Assessment Screening Complete-Date Full Impact Assessment Required- Yes SFR Completed 10/09/09 Key Performance Indicators (to be audited at review): Number and type of organisational restructures or departmental redesigns that are within the scope of this policy Number of grievances or complaints received in relation to organisational restructures or departmental redesigns Number of employees whose roles change as a result of organisational change Number of employees made redundant as a result of organisational change Number of employees who report feeling supported through change management processes Linked Policies: HRP2 Policy for Handling Individual and Collective Grievances and Disputes HRP5 Managing Attendance Policy and Procedure HRP6 Flexible Working Policy HRG15 Summary of the Main Terms and Conditions of Employment NHS A4C Pay System HRP29 Policy for the Management of Work Related Stress HRP31 Retirement Policy HRG 35 Procedure for A4C Banding, Rebanding, Review and Appeals Travel & Subsistence Policy Chairman: Mrs Frances Street Chief Executive: Ms Kathy Doran OBE 1/34

2 Contents Page Title Introduction Scope of Policy Principles and Values Definitions Consultation Process 5.1 Staff Engagement and Involvement 5.2 Staff side Involvement 5.3 Consultation Process Guidance 5.4 Employment Legislation Statutory Obligations Methods of Implementing Organisational Change 6.1 Workforce Planning Service Re-design 7.1 Changes to Working Practices and Duties 7.2 Changes to Terms & Conditions of Employment 7.3 Restructures 7.3.1Matching People to Posts 7.3.2Slotting-In Process 7.3.3Surplus Employees 7.4 Redeployment At Risk Register Vacancy Management Identifying Preferences for Redeployment Interviews for Alternative Posts Suitable Alternative Employment Trial Periods 7.5 Decommissioning of Services Protection of Pay 8.1 Short-Term Protection of Additional Earnings 8.2 Long-Term Protection of Basic Salary or Wage 8.3 Variation to Protection Payable 8.4 Protection of Conditions of Service 8.5 Cessation of Protection Arrangements 8.6 Entitlement to Opt for Terms and Conditions of the new post 8.7 Conditions of Protection 8.8 Cases of Particular Hardship 8.9 Subsequent Changes of Post 8.10 Pension Rights of Staff in the NHS Pension Scheme 8.11 Confirmation of Protection Arrangements 8.12 Outline of Process Management of Redundancies 9.1 Voluntary Redundancies 9.2 Procedures Measures to be Taken for Minimising or Avoiding Redundancies Selection Methods Time Off to Look for Work Retraining Additional Assistance Notice Periods 9.3 Redundancy Compensation 9.4 Retirement for reasons relating to Organisational Change 9.5 Dismissal Process Page /34

3 10. TUPE Transfers 10.1 Legislation 10.2 Process 10.3 Due Diligence 10.4 Pension Rights 11. Support 12. Re-Training 13. Equal Opportunities 14. Appeal 15. Responsibilities 16.1 Chief Executive 16.2 Director of HR 16.3 HR Department 16.4 Head of Service 16.5 Line Manager 16.6 Employee 16. Consultation with Stakeholders 17. Dissemination 18. Implementation 19. Approval and Ratification 20. Review 21. Document Control and Archiving Appendices: 1 Template for Aspiration Interviews 2 Aspiration Interviews Managers Guidance 3 Employer Liability Checklist /34

4 1.0 INTRODUCTION NHS Wirral recognises that its staff members are the most valuable of its resources and therefore wishes to act fairly in situations of organisational change. It is the responsibility of NHS Wirral to determine at any time the workforce required to provide services to the local population and to meet service objectives. A change to working practices, changes that will impact on employees contractual arrangements as well as situations where a service is either transferred in or out of the organisation, which may result in a reduction/change in the number of posts required in a department or directorate. This policy aims to demonstrate the commitment of NHS Wirral to support staff affected by organisational change, avoid redundancies where ever possible and deal with change in a fair, consistent and sympathetic manner to minimise the effect on the employees concerned. This will therefore allow change to occur in an open, transparent and structured way across the organisation. It is important that a key objective of this policy is to ensure that NHS Wirral maintains the quality of existing service provision, minimises disruption and maintains the commitment and motivation of staff during any time of change. To ensure fair and consistent practice, all decisions on staff changes will only be made within the framework of this policy following initial discussions with a representative within HR, ongoing support from the designated HR representative and in consultation with appropriate staff side organisations. 2.0 SCOPE OF THE POLICY This policy applies to all employees of NHS Wirral, except where contractual terms express a different arrangement for dealing with senior managers or directors and should be utilised for all organisational and service changes. 3.0 PRINCIPLES AND VALUES Staff continuing in employment will suffer no detriment to their overall terms and conditions of employment as a result of any form of organisational or service change. NHS terms and conditions of service (Agenda for Change) may only be changed by local agreement, the NHS staff council or law. To fully benefit from the terms of this policy staff must, if necessary, accept suitable alternative posts on an appropriate Band and any agreed changes in duties and responsibilities and or location in accordance with this policy. Changes should take into account the business and strategic objectives of NHS Wirral. Line managers, HR representatives and staff side representatives will work in partnership in developing planned changes and identifying any staffing implications. NHS Wirral will work in partnership with staff side to involve and communicate with staff in a fair, open, timely and transparent manner regarding all proposed changes that may impact upon them. There will be support mechanisms in place for all staff affected by any organisational change. 4/34

5 All parties involved in the process of any organisational change will maintain confidentiality throughout. Security of employment will be maintained where possible, utilising redeployment and retraining where appropriate to ensure the retention of staff within the organisation. Contraction of staff numbers will be achieved via methods such as natural wastage (whereby staff who leave are not replaced) and compulsory redundancies will always be a last resort. 4.0 DEFINITIONS Organisational change - means any structural or managerial change in the organisation of NHS Wirral s services, changes to working practices or contractual arrangements and circumstances relating to the transfer of staff in or out of the organisation for reasons relating to a Transfer of Undertakings. Basic salary or wage - is exclusively the weekly or monthly sum due in respect of basic hours worked by an employee within the standard working week as defined in their conditions of service, plus any other payments reckoned on the day immediately preceding the first day of employment in the new post. Additional earnings - the weekly or monthly average of earnings additional to the basic salary or wage over the four months immediately preceding the first day of employment in the new post. Earnings in the new post - means the sum of the basic salary or wage in the new post and of any remuneration in respect of overtime, shift work and other additional duties. Downgrading - occurs when the new post, irrespective of its grade title, carries an hourly rate or a salary scale with a maximum point lower than that of the grade held by the employee in the previous post. A more senior post - is a post, which carries an hourly rate or a salary scale with a maximum point higher than that applying to the new post or any subsequent post that the employee may have to move to. Reckonable service - to qualify for protection reckonable service will be continuous NHS service. 5.0 CONSULTATION PROCESS 5.1 Staff Involvement and Engagement NHS Wirral is committed to involving and empowering its employee to deliver its strategic agenda as outlined in the Engagement Plan and the Communications and Engagement Strategy. The NHS Constitution sets out our responsibilities in its pledges to actively engage staff in decisions that affect them and the services they provide. All staff will be empowered to put forward their views on ways to deliver better services for our patients and families and to achieve our goal of becoming a high performance, high reputation organisation. This includes staff involvement in the management of change and improvement of services ensuring that staff feel that they have a degree of control over their work and the way in which their teams function. 5/34

6 5.2 Staff side Involvement NHS Wirral recognises the importance of the role that staff side representatives play in supporting the achievement of the organisation s aims. Good consultation processes will be followed to ensure continuation of effective partnership working with staff side on an ongoing basis. 5.3 Consultation Process Guidance Consultation will take place between NHS Wirral and the relevant staff side organisations on the implications for employees which may arise from restructures, the adoption or development of new or revised business practices, the introduction of new technology, or changed funding or other economic circumstances with a view to identifying any employee surpluses far enough in advance to provide sufficient time for the planning of alternative employment. The process outlined below should be used as guidance; however it is important to note that effective consultation can follow various formats and the most appropriate process should be established following discussion with HR. Managers should seek to commence consultation as early as practicable discussions should commence early enough to allow for meaningful consultation to take place but at a point where the basic aims of the change are clear. Appropriate representatives will be entitled to a reasonable amount of information as soon as possible, such as the reasons for changes and the proposed timescale as well as the number and type of staff affected. Managers should ideally develop a consultation document which outlines proposed changes and the process to be followed. With change management there will often be some aspects of the change that are given and cannot be influenced by staff (for example if funding has expired for a service and that service has to cease) and some aspects that can be open to influence. It is useful for givens to be clearly stated so that staff know which aspects of the change management programme they are able to shape. Proposed changes should be shared with staff side prior to commencement of consultation with staff where appropriate. Where appropriate the manager may arrange for a group meeting with all staff affected to inform them of the proposed changes. Staff should be offered the opportunity to have a one to one meeting with their line manager to allow them to give their views, discuss any concerns about the proposed changes along with their ability to adapt to those changes and identify any preferences in relation to future employment. HR can be present at this meeting and the employee can choose to be accompanied by a work place colleague or union representative. A template which can be adapted for use at one to one meetings can be found at Appendix 1 and guidance for managers on conducting one to one meetings is available at Appendix 2. Concerning the provision of information, an open book approach should be taken wherever possible. Managers should incorporate feedback from staff into the change management process. 5.4 Employment Legislation - Statutory Obligations Where it is evident or strongly suspected that planned changes will have a significant impact on employees contractual arrangements, working practices or will result in redeployments or redundancies, then the statutory rules concerning the provision of information and the 6/34

7 requirement to consult with recognised trade unions will be followed. Individuals deemed to be at risk will always have the right to representation throughout the process. Management will give a minimum of 30 days notice (the minimum laid down by the Employment Rights Act 1996) where there are up to 100 staff that might be affected by any proposed changes or made redundant and 90 days notice where more than 100 staff are involved. NHS Wirral will also fulfil its obligations as outlined in the Information and Consultation of Employees (ICE) Regulations April These Regulations set out the need for employers to consult and inform employees on issues that affect the business they work for, including the prospects for employment, and substantial changes in work organisation or contractual relations. It means that information should be shared to allow meaningful consultation to take place before decisions are taken and involves reaching acceptable solutions through a genuine exchange of views and information. Managers will retain the right to manage and will be responsible for any final decisions. Methods of communication around change may involve a combination of some of the following: Open forum events Presentations to groups of staff Discussions in meetings Specific team briefings Staff notices 1:1 meetings Advice in respect of the statutory rules can be obtained from the Human Resources Department, individual trade unions, or by contacting ACAS or visiting their web site METHODS OF IMPLEMENTING ORGANISATIONAL CHANGE The following measures will be utilised in an effort to implement organisational change. Whilst it is recognised that not every measure will be appropriate to every situation, it is expected that all of the options set out will be actively explored in situations where organisational change impacts on employee resources. 6.1 Workforce Planning It is a management responsibility to determine the size and composition of the workforce needed to deliver cost effective healthcare. By carefully developing a strategy for managing resources, disruption to service provision can be minimised and change implemented successfully. Initiatives such as restructures, the adoption or development of new or revised business practices, the introduction of new technology, or changed funding or other economic circumstances will be assessed to ensure any implications for workforce planning are identified early to minimise any negative effect on staff. 7.0 SERVICE RE-DESIGN The NHS is continually changing to improve service delivery, therefore working practices will need to be redesigned to adapt to the changing needs of our patients as well as to deliver services in response to national directives and policies or the requirements set out by commissioners in response to these drivers. These changes will not always affect the contractual terms of employment and but may simply require a change in the organisation s 7/34

8 policies and procedures. However, NHS Wirral may be required to alter employees contractual terms or duties in response to these demands. 7.1 Changes to Working Practices and Duties Where changes are required to working practices, which do not affect the terms and conditions of employment for employees, the line manager will be responsible for ensuring that these changes are implemented and that staff are made aware of these changes within a reasonable time frame. The process for implementing changes to working practices will depend on the number of staff affected, the complexity of the changes and the impact it may have on employees. In the first instance, agreement should be sought and changes implemented through mutual consent. An important part of this process will be to explain the reasons for the changes and open discussions about alternatives. However, if mutual consent cannot be obtained and where the changes affect employees working hours or other arrangements, a full and proper consultation process should be undertaken as set out in Section 5. Consideration will need to be given to the impact the changes may have on employees who have personal commitments outside work i.e. carer responsibilities, childcare arrangements as well as the impact the changes may have on employees who have a medical condition as set out by the Disability Discrimination Act (DDA). Reasonable adjustments may be required for employees who are covered by the DDA. These arrangements will be discussed with the individual concerned and advice should be sought through our occupational health service before a decision is made. If adjustments are not possible, consideration should be given to suitable alternatives such as redeployment. Where redeployment is identified as a suitable alternative, the process as set out in Section 7.4 will be followed and protection of pay will be applied as set out in Section 8. Where an employee is unable to adapt to the changes because of their personal external commitments, consideration should be given to the employee s ability to fulfil the requirements of the service and whether re-deployment is a suitable alternative. Where redeployment is identified as a suitable alternative the process as set out in Section 7.4 will be followed. NHS Wirral will reserve the right to decide whether protection of pay applies as set out in Section 8. Line managers who are managing changes which affect an employee s duties and require amendments to their job description should do so in consultation with the employee(s). The proposed new job description should be provided to the affected employees at the earliest available opportunity. A copy of the job description should also be forwarded to HR as soon as it is available for the purposes of assessment by a HR representative as to whether the changes constitute a need for a review of the Agenda for Change Rebanding as set out in HRG35 Agenda for Change Banding, Rebanding, Review and Appeals. 7.2 Changes to Terms & Conditions of Employment Where there is a requirement for NHS Wirral to respond to changes that affect employees contractual terms and conditions, a process of consultation as set out in Section 5 will be followed. Employees will be given an opportunity to respond to the proposed changes and changes will not be imposed until employees have had an opportunity to share their views or concerns in relation to the proposed changes. 8/34

9 In certain circumstances if an employee(s) refuses to accept the changes to their terms and conditions following an appropriate notice period, the employee may be given notice of termination of their contract of employment and offered re-engagement on the new terms. If the employee then refuses the offer of re-engagement, their contract of employment will be terminated. This course of action will only be taken following full consideration of the individual s ability to undertake the new terms and should only be considered following advice from an appropriate HR representative. Employees who are not satisfied with the outcome of any proposed changes should, in the first instance, raise this with their line manager. The line manager will be responsible for responding to their concerns. However, if a satisfactory resolution is not found the employee will be able to raise their concerns via HRP2 Policy for Handling Individual & Collective Grievances & Disputes as set out in the Section Restructures Where there is a requirement to restructure a service it will be necessary to consult with staff at the earliest opportunity, highlighting the impact it will have on the workforce. Staff side should also be informed as set out in Section 5. Employees who are deemed at risk should be supported and reassured by their line manager that every effort will be made to find them alternative employment should the need arise. During the 1:1 meetings, line managers should discuss the individual s circumstances and assess their suitability for any new roles identified in the new structure Matching People to Posts Where there is no requirement to reduce staff numbers and/or where the substantive duties, grade, hours of work, salary and other terms and conditions of employment of the post holder are wholly or mainly the same, (i.e. less than 50% change to current role) and where there are an equal or more numbers of posts in relation to potential post holders, employees will automatically be slotted into the new structure. Line managers will be required to inform all employees, in writing, whether they have been slotted into one of the posts on the new structure, or whether they have been placed at risk Slotting-In Process Employees will be slotted into posts on the basis of where their current duties are on the new structure. Therefore, if 50% or more of their duties are moved into another post and the post is of the same band, then they will be entitled to that post and be slotted in. If an individual s duties are split across 2 posts which are of the same band, then the individual will be asked to state their preference and the line manager will required to make a decision as to which post will be most appropriate to their experience and skills. The assessment of slotting in individuals into posts will be completed through the 1:1 meetings (Appendix 1). The final decision will rest with the line manager When there are more Employees than there are Available Posts Where it has been identified that there are more employees than there are available posts, consultation will take place to consider what steps can be taken to avoid redundancies. These steps will include a review of turnover rates, overtime being worked, the possible introduction of restrictions on recruitment, a review of the use being made of contract staff 9/34

10 (i.e. those on bank or agency), the consideration of any employees who are approaching retirement age or considering early retirement and the possibility of redeploying and/or retraining people who are likely to be affected. When a department/directorate/organisation is restructuring and there remains a surplus of staff after a full review has been conducted there will, be a process of competitive interview and selection into posts in the new structure against predetermined and agreed criteria, which will be documented on the person specification for each post. In other circumstances, for example where fewer employees are required to carry out work of a particular type, but which does not involve restructuring, then selection criteria will be established in order to determine which employees are deemed to be at risk. The responsibility for determining the pool of employees affected and fair selection criteria for placing them at risk rests with management in consultation with staff side representatives. Every reasonable effort will be made however to agree selection criteria in advance of any decision to declare employees at risk. The criteria should be fair and objective and the needs of the service should be balanced with the wishes of the employees concerned. In particular, the aim should be to ensure that the essential and desirable expertise that exists within the organisation is retained. The pool of employees will be restricted to employees at the substantive or equivalent grade of the posts concerned and are substantively based within the service or category of posts affected by the change. Where an employee is ineligible because he or she is unable to meet the essential criteria of the person specification, or applies and fails to secure a post at the equivalent level in the new structure, then he or she may apply and be considered for other posts in the structure provided this does not have the effect of unfairly displacing other employees who may also be at risk and subject to restricted competition within a different pool. Please note an employee may re-apply and be considered for posts within the sphere of restricted competition three times before being considered at risk. 7.4 REDEPLOYMENT At Risk Register The HR Department will maintain a register of employees at risk of redundancy and employees will be notified when they are entered onto the register. The register will contain information on the individuals preferences for redeployment in addition to basic personal information. Employees on the register will be advised of suitable posts elsewhere in the organisation, and where appropriate, posts will be advertised on a restricted basis to those employees on the register only Vacancy Management To assist the redeployment process, all vacancies that arise should be considered against the redeployment register before they are submitted for open advertisement. No vacancy or new post will be open to competition internally or externally until employees at risk of redundancy and available for redeployment have been considered for such posts Identifying Preferences for Redeployment In considering redeployment, employees at risk of redundancy and available for redeployment, (appropriately accompanied if they so wish) should be interviewed to establish: 10/34

11 The degree of flexibility and personal aspirations Transferable skills The ability to work any other hours at other locations Options for alternative employment Personal constraints This process should be conducted through 1:1 meetings using Appendix Interviews for Alternative Posts A selection interview is guaranteed whenever an employee is at risk and meets the essential requirements outlined in the person specification of an available post or could do so with appropriate training. This interview will take place in advance of any open competition for the post. Employees will be interviewed against the person specification and the most suitable candidate from those who fulfil the requirements of the person specification will be offered the role Suitable Alternative Employment When an employee or group of employees is identified as being at risk all efforts will be made to find suitable alternative employment either within the NHS Wirral or with other NHS employers in accordance with the relevant terms and conditions of service. Suitable alternative employment will be defined in terms of pay, working hours, status, grade, location and working environment. In considering whether a post is deemed as a suitable alternative, regard should be made to the personal circumstances of the employee, though employees will be expected to show flexibility by adapting their domestic arrangements where possible. In certain circumstances and in order to ensure that an alternative post does constitute a reasonable offer of suitable alternative employment NHS Wirral may instigate the protection arrangements set out in Section 8. Where an employee unreasonably refuses an offer of a suitable alternative post, or fails to apply for a suitable alternative post within NHS Wirral, then he or she will be deemed to have refused suitable alternative employment, which may jeopardise his or her entitlement to redundancy payments. Any individual employee who is aggrieved by a decision as to the suitability of alternative employment may appeal by invoking HRP2 Policy for Handling Individual & Collective Grievances & Disputes as set out in Section Trial Periods A trial period is required if an offer of suitable alternative employment is made to an employee who would otherwise be made redundant and the suitability of the post is not clear from the outset. The trial period would be for a minimum of four weeks and a maximum of three months. If, during the trial period, the employee reasonably decides to reject the post or management deem they are unsuitable for the post, the employee would be placed back onto the at risk register and would not forfeit his or her right to redundancy payment. If an employee who would otherwise be declared redundant requests a trial period in a post that would not be regarded as suitable alternative employment, the employee would not 11/34

12 forfeit his or her redundancy payment if he or she reasonably decides to reject the role during the trial period. The terms of the trial period and the subsequent arrangements i.e. protection of pay will be confirmed in writing to the employee prior to commencement. In all cases, the employee will remain employed on his or her substantive terms and conditions of employment throughout the duration of the trial period. If after the trial period ends the manager and employee has not expressed any concern as to the suitability of the post they are trialling, they will be deemed to have accepted the post. 7.5 Decommissioning of Services In circumstances where a service may potentially be decommissioned, the appropriate Senior Manager(s) of NHS Wirral will be responsible, in the first instance, for identifying the group(s) of staff that will be affected. Staff side should be consulted and a process for informing staff should be agreed. A process of consultation as outlined in Section 5 should be conducted at the earliest possible opportunity before a final decision is made. Once the views and opinions of staff have been collated, and attempts have been made to avoid a decommissioning of the service, a final decision should be made. If the decision is taken to decommission the service, staff should be told without any unnecessary delay. Appropriate plans should then be agreed and put in place to consider the re-deployment of the staff affected and the process as outlined in Section 7.4 should be followed. Employees who are successfully redeployed will be entitled to protection of pay as set out in Section 8. If it has not been possible to find a suitable alternative role for individual(s) affected by the decommissioning process then staff will be entitled to redundancy payments as set out in Section 9 provided they have not unreasonably refused a suitable alternative. 8.0 PROTECTION OF PAY In circumstances where an employee is adversely affected by organisational change there will be arrangements for safeguarding pay and conditions of service as an alternative to redundancy or early retirement. These arrangements apply to any employee who, as a consequence of organisational change, is required by management to move to a new post of a lower grade or suffers a reduction in hours worked in a standard working week. It provides: Short-term protection of additional earnings, whether or not downgrading is involved. Long-term protection of basic salary or wage, where downgrading is involved. Protection of certain other conditions of service. These arrangements do not apply to temporary positions, where staff are downgraded as a result of capability or move to a post on a lower grade of their own choosing. 12/34

13 8.1 Short-Term Protection of Additional Earnings Organisational changes that affect additional earnings of staff will be protected for a period of 1 year. This will apply to all staff, regardless of length of service. 8.2 Long-Term Protection of Basic Salary or Wage An employee who is moved from one post to another and is downgraded as a consequence of the move is entitled to long-term protection of basic salary or wage for a period of two years on a mark time basis. Short and long term protection will run concurrently where necessary. Where an employee requests a reduction in their working hours under the Flexible Working Policy (HRP6), pay protection will only apply to the subsequent change i.e. a reduction from 37.5 to 30 hours per week will mean that pay protection will only apply to the 30 hours and not the original pay protection period. Where an employee is already receiving pay protection as a result of Agenda for Change and is subsequently entitled to pay protection as a result of organisational change, the longest period of pay protection will apply. 8.3 Variation to Protection Payable Total earnings in the new post will be offset against protectable earnings. If for any particular pay period the total earnings in the new post exceed the protectable earnings, protection is not payable for that period and the total earnings in the new post are paid in full. When calculating earnings in the new post, the rates used for calculating payments in respect of overtime, shift work and other additional duty payments shall be those rates applicable to the new post. 8.4 Protection of Conditions of Service Hours An employee required to move to a new post will take the hours of that post. In agreeing the actual working pattern, the needs of both the employee and the service will be considered in line with NHS Wirral s approach to flexible working. Annual Leave Annual leave will be protected for the same period as the pay protection. Subsistence and Travel Rates appropriate to the former post will be paid for the same period as the pay protection. Any employee who is required to move to a new base as a result of the amalgamation of NHS employers, to prevent a redundancy, or for reasons of organisational change is entitled to a maximum of four years daily travel expenses, that is, payment of the additional mileage at public transport rate in accordance with section of the Agenda for Change Terms and Conditions Handbook. Lease Car When an employee is required to move to a new post with significantly reduced travelling requirements and they currently have a lease car, they will receive 13/34

14 protection of any contribution to the lease car for the remaining term of the lease only. All enquiries relating to lease cars should be directed to the Finance Department. 8.5 Cessation of Protection Arrangements Pay protection will cease to apply in the following circumstances: - when the pay protection period and the phasing period specified expire, at that time the employee will move to the salary or wage applicable to the new post - when the employee leaves the organisation or retires - if the employee is appointed to a post in which the normal basic salary or wage is equal to or exceeds the protected salary or wage - the employee moves, on his/her application to a post carrying a basic salary or wage lower than the basic salary or wage being protected 8.6 Entitlement to Opt for Terms and Conditions of the New Post An employee with an entitlement to long-term protection may at any time during the protection period opt for the complete package of remuneration and conditions of service applicable to the new (or any subsequent) post. This option, once exercised, cannot be reversed. 8.7 Conditions of Protection Short-term protection of earnings is conditional upon the employee undertaking any reasonable overtime, shift work or other additional duties which may be required up to the level at which earnings in the new post equal protected earnings. Short-term protection of earnings is also conditional upon the employee accepting any subsequent offer of another suitable alternative post within NHS Wirral, which attracts a basic salary or wage in excess of the basic salary or wage applying to the new post. Continued payment of long-term protection of basic salary or wage, where downgrading is involved is conditional upon the employee giving an undertaking to move to a relevant senior post within NHS Wirral, when available. In determining whether or not such a move is reasonable, account will need to be taken of the location of the post. If an employee fails to give such an undertaking within 4 weeks of the day on which the downgrading takes effect, or if she/he initially or subsequently unreasonably refuses to apply for or to accept a more senior post, protection of basic salary or wage will not be payable. 8.8 Cases of Particular Hardship In cases where an employee will suffer particular hardship as a result of downgrading, managers, in consultation with the Director of HR, may agree to vary this arrangement. 8.9 Subsequent Changes of Post Any subsequent change of post due to an organisational change covered by this agreement will attract protection in its own right. 14/34

15 8.10 Pension Rights of Staff in the NHS Pension Scheme An employee on protection may opt to have his/her service at the previous rate of pay treated as preserved. When s/he retires, benefits will be calculated both in the normal way and separately for the two periods and whichever method provides the bigger pension will be used. To preserve membership in this way the employee must write to the Payroll Department, within three months of the change in pay. Ideally, the HR Department will bring this to the attention of the employee who is being protected and who is in the NHS Pension Scheme, to enable him/her to exercise this option at the appropriate time. This responsibility however, should also be shared by the manager, trade union, (if applicable), and the employee themselves Confirmation of Protection Arrangements Each protection situation is unique, but in every case a letter that details the nature and scope of protection arrangements will be issued to the employee affected Outline of Process In cases where an employee is deemed to be eligible for protection of pay & conditions of service following a restructure or reorganisation of services the manager will meet to discuss the implications of these arrangements. The manager will also be responsible for formally notifying the HR Department and Payroll to ensure that the provisions are implemented. 9.0 MANAGEMENT OF REDUNDANCIES Definition of Redundancy: Redundancy can be defined as a dismissal, which is wholly or mainly attributable to: a) the fact that the employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by them, or has ceased or intends to cease to carry on that business in the place where the employee was so employed, or b) the fact that the requirements of that business for employees to carry out work of a particular kind or for employees to carry out work of a particular kind in the place where they were so employed, have ceased or diminished or are expected to cease or diminish (Section 139 (i), Employment Rights Act 1996). NHS Wirral is committed, so far as is possible, to providing continued employment for existing permanent staff and therefore to doing anything reasonably practicable and affordable to avoid having to make staff compulsorily redundant. However, where redundancy becomes necessary, NHS Wirral will: encourage full and open consultation with staff and their representatives during periods of change that may lead to redundancy facilitate the redeployment of staff and assist with appropriate re-training as required for redeployment opportunities ensure appropriate and fair processes are followed endeavour to ensure that wherever possible or affordable reductions in staff numbers are achieved through natural wastage or by means of voluntary early retirement 15/34

16 9.1 Voluntary Redundancies Wherever possible and where it is business viable, the option of offering voluntary redundancies will be considered. Thus where reductions are known to be required, an attempt must be made to ascertain which staff would wish to take voluntary redundancy if it were offered. However, the costs of voluntary redundancy, particularly for those staff aged over 50 years (and who are members of the pension scheme), may be such that management cannot accede to individual requests to be made redundant. Management, reserves the right to make compulsory redundancies where the financial cost of voluntary redundancies is prohibitive. 9.2 Procedures Measures to be taken for Minimising or Avoiding Redundancies Wherever practicable all possible steps will be taken for minimising or avoiding redundancy as follows: Forward planning of staff needs and recruitment plans as far ahead as is practicable Reductions in overtime Redeployment and retraining Natural attrition/retirements Non-renewal of temporary employment contracts The health of the individual Review possibility of suspension in external advertising for affected posts/grades Consider possibility of voluntary redundancy (see above) (i) In relation to redeployment the following criteria will be considered in deciding whether a post is suitable alternative employment, and whether it has been unreasonably refused. These reasons may be defined by either: NHS Wirral, the employee or by both. In all cases these will also need to be clearly detailed and explored: Nature of the job Qualifications and skills required Career prospects Hours and how worked Travelling arrangements Personal and/or domestic circumstances Salary Working environment In relation to personal circumstances employees will be expected to show some flexibility by adapting their arrangements where possible. (ii) (iii) Every effort will be made to draw any suitable alternative employment to the attention (preferably in writing) of individuals in posts at risk. Individuals in posts at risk will also be expected to make every effort to draw their attention to any vacancies within the organisation that they consider to be suitable. In considering applications from at risk or displaced staff and in assessing suitability for employment in the post, the potential for training/retraining will also be considered. Where staff express an interest in a promotion post, appointment will be by open competition. 16/34

17 (iv) (v) Redeployment to vacant posts at a lower salary will only be considered as an option where it is clear that the alternative is dismissal for reasons of redundancy. Protection of earnings in such circumstances will be in accordance with Section 8. In such circumstances the employee will have a responsibility to actively seek a suitable post commensurate with the level of the protected grade. Any offer of suitable alternative employment should be made before the old contract ends and should attempt to indicate the principal ways in which the new job differs from the old. Where this is done but the employee fails to respond to any such offer, the employee shall be deemed to have refused suitable alternative employment. (vi) The acceptance of any suitable alternative employment, may be subject to a 4 week trial period. (Any trial period may be extended by mutual agreement to a maximum of 13 weeks). Trial period arrangements, including mechanisms for assessment and review should be agreed before the trial period begins. If during the trial period it becomes clear that the redeployment is not in fact suitable (as defined by either management or the individual staff member), this will not affect entitlement to any redundancy payments that might be due under the old substantive contract. Redundancy payments will be put at risk if an employee withdraws without reason from an agreed trial arrangement Selection Methods Selection methods will be agreed locally according to the circumstances of the reduction, the staff groups involved and the requirements of the service following the change. Any or all of the following may be considered as criteria for selection, bearing in mind the requirement to ensure that the use of any criteria does not discriminate directly or indirectly on the grounds of disability, pregnancy, gender, race, sex, sexual orientation or age. Length of Service Disciplinary records Qualifications/Skills The cessation of any funding directly linked to the provision of the service provided by one or more members of staff The absence in a new structure of any or all of the principle activities present in any current post Sickness Absence Records Standard of work performance or aptitude/skills assessment Where an employee has a condition covered by the Disability Discrimination Act, separate arrangements will be agreed with the individual. In the latter case it will be vital that there is formal documented and objective evidence (e.g. performance management documentation). Any assessment matrix/methodology will be shared with individual staff and their union Time Off to Look for Work Staff will be given reasonable time off, with pay and reimbursement of expenses to consult with management and staff representatives, to visit any new locations where they may be seeking alternative employment, to attend for interview and to attend training and retraining. 17/34

18 9.2.4 Retraining Appropriate preparatory training, induction and on or off-the-job training will be provided to enable staff to move into areas of work not fully covered by their original training or recent experience. This will include attendance at any courses or seminars that may be pertinent. Reimbursement of any agreed travelling expenses should be in accordance with normal business travel Additional Assistance Each individual at risk of possible redundancy will be given the opportunity for individual advice and counselling including provision of information about: Entitlements to payments Other possible job opportunities Preparation of CVs and interview skills Other agencies which may assist Benefits Agency, Tax Office etc Financial advice Staff counselling service Notice Periods Contractual notice should normally be served to any staff involved in a redundancy situation. Circumstances will dictate whether NHS Wirral can offer longer than contractual notice to maximise the possibility of redeployment opportunities arising, but every effort will be made to do so where at all possible. An employee may leave before the expiry of notice if: The employee, after having been given notice by NHS Wirral, gives written counter-notice (which with agreement may be less than the contractual period with no loss of redundancy payment rights) or may be required to leave if: The employee engages in conduct resulting in another reason for dismissal. In respect of the above NHS Wirral reserves the right to make an outright payment in respect of notice and redundancy entitlements by way of full and final settlement. 9.3 Redundancy Compensation (i) (ii) Where there is no entitlement to a pension: Redundancy payments will be based upon national NHS Agenda for Change agreements. This allows for a payment over and above the state minimum, based on NHS service and age. Please contact the Director of HR for more information and to discuss any potential redundancy compensation payments. Where pension is paid: Redundancy compensation will be awarded in accordance with Agenda for Change terms and conditions and those of the NHS Pensions Agency. 18/34

19 The redundancy payment applies equally in respect of voluntary or compulsory redundancies. It should be noted that Doctors, Dentists and very senior managers are not covered by the national Agenda for Change agreement and where senior staff are at risk of redundancy, further advice should be obtained from the Director of HR. 9.4 Retirement for Reasons Relating to Organisational Change Where it is in the interests of the efficiency of the service, employees of NHS Wirral who are made redundant and meet the criteria of the NHS Pension Scheme to retire on the grounds of organisational change may be entitled to an early award of their pension benefits, in accordance with regulations of the NHS Pensions Agency. Employees who qualify may receive immediate payment of pension and lump sum dependent on their pensionable service and age. Staff will be able to receive advice and an estimate of their individual pension benefits upon request. 9.5 Dismissal Process Staff members who are served notice of redundancy must be advised of their right of appeal. Any such appeal has to be lodged within 21 days of the date of the letter of notice. Such appeals will be established and conducted as per the procedures of dismissal under the relevant dismissal procedure. 9.6 Grievance over Selection Process Staff who dispute what is considered to be a reasonable offer of alternative employment or otherwise feel they can demonstrate that the procedures are not being properly followed have a right of appeal in line with HRP2 Policy for Handling Individual & Collective Grievances & Disputes. Where it is deemed appropriate, a fast track grievance procedure will be agreed with trade unions as part of the initial consultation period TUPE TRANSFERS 10.1 Legislation TUPE transfers as defined under the Transfer of Undertakings (Protection of Employment) Regulations can occur where there is a business transfer or there has been a service provision change. As defined under the Regulations a relevant transfer is when: - A business, undertaking or part of one is transferred from one employer to another as a going concern (a circumstance defined for the purposes of this guidance as a business transfer ). This can include cases where two organisations cease to exist and combine to form a third; - When a client engages a contractor to do work on its behalf, or reassigns such a contractor including bringing the work in-house (a circumstance defined as a service provision change ). Where a service provision is transferred in or out of the organisation, NHS Wirral will abide by the TUPE Regulations which preserves employees terms and conditions. This means that employees employed by the previous employer (the transferor ), when the transfer takes effect, automatically become employees of the new employer (the transferee ) on the same terms and conditions of employment. 19/34

20 Commissioners should work alongside HR representatives at the earliest opportunity where a potential transfer has been identified to ensure NHS Wirral meets its obligations outlined in the Regulations Process Consultation with staff is essential to ensure that NHS Wirral abides by its obligations under the Regulations and provides a communication mechanism for staff who are affected. Staff side representatives should be informed of all staff affected of any proposed transfers as soon as possible. This might include employees who: - will be transferred - will not be transferred but whose jobs might be affected - might be affected by the transfer NHS Wirral is required to inform staff of: - the fact that a transfer is going to take place, approximately when and why - the legal, economic and social implications of the transfer for the affected employees - whether any measures, like reorganisation will be taken, and how the staff are likely to be affected Consultation must be carried out with the aim of coming to an agreement and provide information within good time. Employees transferring into or out of the organisation will retain the following contractual rights: - all previous terms and conditions of employment - holiday entitlement accrued - continuous service - any collective agreements previously made The TUPE regulations prevent employees from suffering a detriment to their contractual arrangements after the transfer. They also prevent any changes to an employee terms and conditions being made solely for reasons relating to the transfer that is not connected to an economic, technical or organisational reason. Once a TUPE transfer has been identified it will be the line manager s responsibility to identify the group(s) of staff that are affected by the transfer. They will then be required to: - Contact a HR representative to support the transfer process. - Liaise with the transferee/transferor to establish who is affected. - Communicate with the affected employees. - Work in partnership with staff side on the proposed transfer. - Inform affected employees who are transferring of any changes that are being proposed within a reasonable timescale. Employees transferring into NHS Wirral wishing to adopt NHS Terms and Conditions may do so, if they wish. 20/34