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Organisational Change Policy for NHS Wales

Reference Date Purpose of Issue/Description of Change

Planned Review Date

HR023

January

2010

April 2011

Responsible Officer

Approved by

Committee/Board/Group

Date Approved by

Committee/Board/Group

Deputy Director of Human Resources

Partnership Board

8th April 2009

Bwrdd Iechyd Addysgu Powys yw enw gweithredol Bwrdd Iechyd Lleol Addysgu Powys

Powys Teaching Health Board is the operational name of Powys Teaching Local Health Board

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Foreword

The management of organisational change should be managed with sensitivity to ensure that concerns of staff are addressed.

The Welsh Partnership Forum has worked to develop fair and equitable arrangements which are underpinned by Human Rights and equalities principles and legislation, to

ensure that staff are treated fairly and equally and remain fully supported throughout

the process of organisational change.

It is expected that all NHS organisations will adopt this Policy as the core standards of

practice, which will apply to all staff affected by change.

Peter Finch Chartered Society of

Physiotherapy

Joint Chair, Welsh Partnership

Forum

Sheelagh Lloyd Jones HR Director

NHS Wales

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CONTENTS – Page Numbers

1 Introduction 5

2 Scope of The Policy 5 3 Policy Statement 5

4 Principles to be Observed 6

5 Consultation with Staff Interests 6

6 The Introduction of Change 7 6.1 The Organisation 7

6.2 The Trades Unions 7

7 Anticipating and Preparing for Change 8

7.1 Restrictions on Vacancy Filling 8 7.2 Temporary Appointments to Maintain Services 8

7.3 Staff Affected by the Change and Notice Provisions 8

8 Managing Staff At Risk of Displacement 8

8.1 Placing Staff at Risk of Displacement 8

8.2 Priority Status Staff 9

8.3 Seconded and Acted Up Staff 9 8.3.1 Seconded and Acted Up Staff With Less Than Four

Years Continuous Service 9 8.3.2 Seconded and Acted Up Staff With Four Years or

More Continuous Service 10

8.4 Fixed Term Staff 10 8.5 Collection of Information 10

8.6 Support Arrangements 11

9 Procedure for Filling Posts During Organisational

Change 11 9.1 Application 11

9.2 Principles 11 9.3 Slotting in 12 9.4 Prior Consideration 13

9.5 Restricted Competition 13 9.6 Selection Process 13

9.7 Appealing Against a Decision 13

9.8 Actions to be Considered Following the Appointment Process 14

10 Transfer to a New Employer 14 10.1 The Transfer of Undertakings (Protection of Employment) Regulations (2006) TUPE 14

10.2 Cabinet Office Statement of Practice 14

10.3 Information Rights 14 10.4 Consulting with Affected Staff 15

10.4.1 Trades Union Members of Staff 15 10.4.2 Non Unionised Members of Staff 15 10.5 Refusal to Transfer 15

10.6 Re-engagement Following Redundancy 15

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10.7 Career Planning and Support for Displaced Staff 16

11 Alternative Employment 16 11.1 NHS Reform Programme (2009) Alternative Employment

Scheme 16

11.2 Alternative Employment – Principles and Procedure 16 11.3 Factors to be Considered When Determining Suitable

Alternative Employment 16

11.4 Offers of Alternative Employment 17 11.5 Trial Periods 18

11.6 Staff not Redeployed 19

11.7 Rights of Appeal 19

12 Arrangements for Salary Protection 19 12.1 Definition of Earnings Protection 19

12.2 Short Term Protection of Basic Salary 19 12.3 Long Term Protection of Basic Salary 19

12.3.1 Length of Basic Salary Protected Period 20

12.4 Pay Protection Principles 21 12.5 Criteria for the Payment of Protection 21

13 Excess Travel and Car Parking 21

14 Relocation / Removal Expenses 22

15 Review, Evaluation and Monitoring Arrangements 22 15.1 Formal Review 22

15.2 Evaluation 22 15.3 Monitoring 22

Appendix 1 Procedure for Filling Posts During Organisational Change

Flow Chart 23

Appendix 2 Organisational Change Grievance Policy 24

Appendix 3 Organisational Change Grievance Registration Form 28

Appendix 4 Redundancy Policy 30

Appendix 5 NHS Reform Programme (2009) Recruitment and Selection

Procedure for New Local Health Board Organisation Chief

Executive and Executive Director/Board Level Director Posts 35

Appendix 6 NHS Reform Programme (2009) Alternative Employment Scheme 43

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Organisational Change Policy for NHS Wales

1 Introduction

This policy has been developed by the Welsh Partnership Forum and sets out the principles that apply in managing internal organisational change within NHS Wales. In this context such change includes mergers and de-mergers between

NHS organisations in Wales. NHS organisations will adopt and abide by this Policy as the core standards of practice, which apply to all staff affected by

change.

At times of organisational change it is particularly important to ensure that

support, guidance, training and development opportunities are made available

to all staff employed by NHS organisations within Wales in accordance with best

practice, The wider NHS in Wales will be responsible for assisting in the redeployment of staff from any NHS organisations affected by organisational

change.

2 Scope of the Policy

This Policy replaces ‘Welsh Health Circular WHC(2008)017, An Organisational Change Framework for NHS Wales’, which was issued June 2008.

The Organisational Change Policy will apply to all NHS Wales staff that are

affected by mergers, de-mergers, organisational change, service developments and NHS Reform.

The following sections and appendices of the Policy will only apply during the NHS Reform Programme (2009);

• Appendix 5 NHS Reform Programme (2009) Recruitment and Selection

Procedure for New Local Health Board Organisation Chief

Executive and Executive Director/ Board Level Posts; and • Appendix 6 NHS Reform Programme (2009) Alternative Employment

Scheme.

3 Policy Statement

In the application of this Policy all staff will be treated with dignity and respect

and in accordance with equality and human rights legislation. No individual will be treated less favourably on the basis of age, (except in so far as it is affected

by the age retirement policy) disability, gender or transgender, race, religion

and belief and non-belief, sexual orientation, pregnancy, hours worked (full-time or part-time) or trades union membership etc.

Organisations are required to monitor the implementation of this Policy and

ensure that they assess its impact across the equality strands and in respect of human rights. This will require the collection, monitoring and reporting of

workforce equality data for all staff identified as being at risk and subject to the

provisions of the Policy. 3.2 All relevant policies affecting staff shall be agreed through partnership

arrangements with trades unions and will:

• be fair, equitable, lawful and compliant with current legislation;

• recognise the value and skills of individual staff;

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• provide assurance that staff have a valuable contribution to make to the

new agenda / organisation; • be open, transparent and fully involve all staff;

• promote and support the continued development of staff; and

• have clear channels of communication and consultation.

4 Principles to be Observed 4.1 It is the policy of NHS Wales to prevent all avoidable compulsory redundancies,

which could potentially occur as a result of organisational change. As such, it is

the aim of this Policy to ensure that the NHS retains the valuable knowledge,

skills and experience of its workforce, by utilising a number of strategies, to assist displaced staff to find suitable alternative employment and / or retraining

opportunities, which will enable them to continue to contribute positively to the

service.

4.2 Subject to the processes outlined below, when the need arises to redeploy staff,

NHS organisations will:

a) consider the use of short term temporary staff in any period of change, to

maintain service requirements until the change is completed and to maximise potential redeployment opportunities;

b) use early retirement and / or voluntary redundancy schemes where circumstances and / or resources allow;

c) after consultation, identify (in pay and conditions) suitable alternative

work in the employing organisation, for staff affected by the change;

d) transfer staff affected to suitable alternative work with other

organisations, by agreement with the staff concerned and the organisations concerned;

e) support staff who wish to retrain and are qualified to undergo training for posts in other disciplines / areas, where reasonable; and

f) by means of the development review / personal development plan

process, assist and support staff to overcome constraints, which may prevent them undertaking a new role.

All staff are entitled to be represented or accompanied by a recognised trades unions official, local trades unions representative or a workplace colleague,

when subject to any of the arrangements arising from this Policy.

5 Consultation with Staff Interests

5.1 Each employing organisation’s senior managers will continue to work in

effective partnership with representatives of Trade Unions on the implications for staff in respect of strategic and other major plans concerning the

organisation and provision of services. Such discussions will take place through

local partnership arrangements.

5.2 In any discussion with staff, it is expected that there must be regard for the need to ensure that communication is effective and meets any individual’s needs in accordance with equalities principles and legislation. This includes the

duty to carry out reasonable adjustments under the Disability Discrimination

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Act e.g. to provide a loop system, easy read etc.

5.3 Additionally, management will continue to discuss with staff and their

representatives, at departmental and other appropriate levels as agreed, the

workforce implications of particular changes or developments, which appear

likely to have a significant effect on the work of individuals, the departments or staff group concerned, before any final decisions are taken.

5.4 In conducting such consultations, management will follow the principles set out in the following section on the ‘Introduction of Change’. They will also be

required to provide in advance, written details of any proposed organisational

change and / or the workforce implications, to facilitate discussion with the staff affected.

6 The Introduction of Change

6.1 The Organisation

(a) recognise that staff and their representatives have an expectation that

management will discuss with them the reasons for and the implications of any proposals or options, which appear likely to have a significant

effect on the nature of the work they perform or the arrangements or conditions under which the work is carried out; and

(b) undertake that its managers will discuss in a timely manner such proposals or options and their implications with the staff and their

representatives, which are likely to be affected by them, before final

decisions are taken.

6.2 The Trades Unions

(a) recognise that in the interests of patient care and the efficient use of

resources, the organisation’s managers have a responsibility to review from time to time the activities of individual and groups of staff and the

arrangements and conditions under which such activities are performed;

and

(b) undertake to advise their members to co-operate in the introduction of

changes arising from such reviews, where the principles set out in this

Policy are followed.

6.3 Both management and trades unions also recognise that there is no single

universal prescription, which can be meaningfully followed in every case where changes are proposed.

Where, however, the changes proposed are of a significant nature, some prior discussion regarding the reasons for them, any available options and their

implications will be necessary. As a general rule, such discussions are best

conducted between the responsible manager, the staff affected and their

representatives.

Where the changes envisaged appear likely to affect the location, hours of

work, grades / bands or earnings of the staff concerned, the responsible manager should consult the accredited representative(s) of the staff concerned,

at the earliest possible stage. 6.4 Particular consideration should be given to the following points during the

discussion of any proposed changes, as applicable:

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a) health and safety implications; b) training or re-training needs;

c) staffing requirements;

d) arrangements for redeploying or transferring any displaced staff;

e) arrangements for recruiting any additional staff; f) any required changes to shift patterns, location and / or hours of work;

g) any grade / band implications; and

h) applicability of any relevant protection arrangements.

7 Anticipating and Preparing for Change 7.1 Restrictions on Vacancy Filling

Restrictions on the filling of vacancies in certain categories of posts (other than

on a short term temporary basis) will be introduced to assist in creating suitable

alternative positions for staff affected by the change.

Employers will consult with trades unions in a timely manner, in respect of the

categories of posts which need to be brought within this restriction, as required.

7.2 Temporary Appointments to Maintain Services A number of fixed term appointments or secondments may be required to

maintain services whilst rationalisation or reorganisation of services or

organisations takes place. These temporary arrangements will be required either to fill gaps in the service or organisation that is undergoing change, or to

fill gaps elsewhere, to 'reserve' places for staff who will become displaced but

who are required to remain in their current post for the time being, to maintain

adequate services. The reasons for the temporary nature of the appointment must be given clearly

in writing to any staff appointed in this capacity and an estimate should be given as to how long the appointment will last. In these circumstances fixed

term appointments or secondments will not normally be made where the

position concerned is likely to continue for a period of more than one year.

7.3 Staff Affected by the Change and Notice Provisions

A list of staff at risk of being displaced from their substantive post as a result of

each approved reorganisation, rationalisation or reduction of services should be compiled at the earliest practicable date. Managers will be responsible for the

compilation of such lists, in conjunction with HR/Personnel Departments and for

informing relevant representatives.

Whilst every effort must be made to find suitable alternative employment and arrange redeployment in line with the change timetable, staff affected must be advised by their line manager as to their position, throughout the change

process.

Careful consideration must be given, in the light of the circumstances of the change programme, as to the timing of the issue of any notices of redundancy.

8 Managing Staff at Risk of Displacement 8.1 Placing Staff at Risk of Displacement

The timing of when staff will be declared at risk of displacement is important and this will be agreed in partnership with the trades unions, at the start of any

period of organisational change.

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8.2 Priority Status Staff Having identified and agreed the staff that will be affected by any change

process, priority status will be afforded to those staff that are at risk of being

displaced from their substantive post.

8.3 Seconded and Acted Up Staff

The procedure for filling posts during organisational change, set out in Section 9

of this Policy, will not be applicable to a ‘seconded’ or ‘acted up’ role, which will be affected by the organisational change process, unless the member of staff

has been in the post for a period of 4 continuous years or more, on the date on

which they are displaced.

A member of staff who is ‘seconded’ or ’acting’ up may however be included in

the provisions of Section 9 if they hold a substantive role which is subject to

organisational change. In these circumstances the secondment or acting up arrangement will cease if the member of staff is slotted in or has prior

consideration rights in regard to their substantive role.

8.3.1 Seconded and Acted Up Staff With Less Than Four Years

Continuous Service

Where a member of staff has been seconded or acted up in a post for a

period of less than 4 continuous years, on the date on which they are displaced, the banding / grading and terms and conditions of service of

their substantive post will be used to determine offers of suitable

alternative employment, should they be unable to return to their

substantive post. Where a member of staff has been seconded or acted up into a post with

no agreement to return to their substantive post, it will be the responsibility of their substantive employing organisation to find them

suitable alternative employment where possible, at the end of the

secondment / acting up period. This post should be at the same band / grade and on similar terms and conditions to those the member of staff

was employed on, prior to the commencement of their secondment.

Where a member of staff has been seconded or acted up into a post with no agreement to return to their substantive employing organisation,

it will remain the responsibility of their former substantive employing

organisation to find them suitable employment. This post should be where possible at the same band / grade and on similar terms and

conditions to those the member of staff was employed on, prior to the commencement of their secondment.

Where a member of staff’s substantive employing organisation no-longer

exists, it will be the responsibility of the successor organisation, to the

original employing organisation to honour their return to their substantive post, where this is still available, or to find them suitable

employment where possible, should the post no longer be available or

exist. This post should where possible be at the same band / grade and on similar terms and conditions to those the member of staff was

employed on, prior to the commencement of their secondment.

Where a seconded member of staff has a substantive contract but never

held a substantive post with their employing organisation, i.e. their

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contract is hosted; it will be the responsibility of their employing

organisation to find them suitable employment where possible. This post should where possible be at the same band / grade and on similar terms

and conditions to those the member of staff enjoyed in their secondment

post.

8.3.2 Seconded and Acted Up Staff with Four or More Years Continuous

Service

Where a member of staff has been seconded or acted up in a post for a

period of 4 continuous years or more, on the date on which they are

displaced this will be considered to be their substantive post.

In these circumstances the member of staff’s secondment / acting up

banding / grading and terms and conditions will be used to determine

offers of suitable alternative employment, should they not be appointed to a post using the slotting in or prior consideration principles.

8.4 Fixed Term Staff Under the Fixed Term Employees (Prevention of Less Favourable Treatment)

Regulations 2002, a member of staff on a fixed term contract (e.g. the member

of staff has been appointed to work in a fixed term or temporary post until a specified end date, event or task) is entitled to equal treatment. This equal

treatment applies in terms of pay, benefits, equal opportunities for promotion, training and further development, including the right to be informed of all

suitable available vacancies, and equal access to the occupational pension

scheme, unless the less favourable treatment can be objectively justified by the

employer. Where a member of staff has been appointed on a fixed term contract and is

affected by organisational change, the manager should liaise with the Human Resources Department. Where a member of staff has been employed

specifically to cover e.g. maternity leave, sickness absence or to undertake a

specific project, it is unlikely that they will have an entitlement to the provisions outlined in Section 9 of this Policy.

Where an employer is proposing to dismiss a member of staff employed on a

fixed term contract, there should be full consultation with affected member of staff and a thorough consideration of alternative employment prior to this

decision being taken.

8.5 Collection of Information

All staff identified as being at risk of being displaced should be informed of their position and interviewed by their manager, with appropriate support and advice from HR/Personnel Department, as soon as possible and, if they so wish, in

conjunction with their staff representative. This should be confirmed in writing.

A special record should be created for each member of staff considered to be at risk of being displaced, to record relevant personal details, circumstances,

preferences, knowledge, skills, qualifications and experience.

To co-ordinate the numbers of staff at risk of displacement in any large scale

reorganisation, it may be necessary for affected staff to have their range of knowledge and skills assessed using a consistent format. This will ensure that appropriate vacancies and opportunities can be identified speedily and without

the need for these staff to be interviewed on more than one occasion. This

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process will be undertaken in partnership, by appropriately skilled managers

and staff representatives.

8.6 Support Arrangements

Managers must ensure that local arrangements are established to assist staff

who are at risk of being displaced or whose posts are potentially at risk. The following points can be regarded as a checklist of support facilities, which could

be offered:

• access to career advice;

• access to counselling;

• access to suitable senior staff to act as mentors and provide external advice and guidance as appropriate;

• arrangements for accessing and / or restricting vacancies as appropriate,

using NHS Jobs;

• assistance and advice on CV writing, application form filling, interviewing skills, etc.;

• assistance with access to NHS Jobs, job centres, recruitment consultants,

etc.; • facilities and assistance for sending CV’s to all-Wales NHS bodies,

organisations and employers; • contact with and access to retraining opportunities and allowances, further

education establishments, etc.; and

• access to independent financial and pension advice in the event of redundancy or early retirement.

The above list is not exhaustive. It is intended to be a general guide on areas

for consideration.

9 Procedure for Filling Posts during Organisational Change 9.1 Application

This procedure will apply to all staff affected by organisational change, with the

exception of the appointment to Chief Executive and Executive Director / Board Level Director posts, during the NHS Reform Programme (2009). The procedure

for filing these posts is set out in Appendix 5.

Employers should make appropriate arrangements to ensure that all staff affected by change, including those on any form of authorised absence, which

may include maternity leave, parental leave, carers leave, term-time working,

long term sick leave or secondment, are considered at each stage of this procedure and are not disadvantaged in any way.

9.2 Principles

The arrangements for filling posts should be based on the following broad

principles, applied to all members of staff with a permanent contract of

employment, but may exclude those staff employed on fixed term contracts

(please refer to Section 8.4 above);

• all those eligible for consideration for a post should be treated on the basis

of equality; • all staff should have a legitimate expectation that they will be found a post

with similar pay and conditions of service (suitable alternative employment); • where a member of staff accepts a suitable alternative post, which attracts a

lower salary, their pay will be protected in accordance with the

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‘Arrangements for Salary Protection’, set out in Section 11 of the

Organisational Change Policy; • consideration should be given to the different circumstances of staff with

domestic / caring responsibilities, flexibility around part timers etc.;

• reasonable adjustments should be made to a role and/or working

environment to support disabled staff to gain an alternative post or suitable alternative employment;

• opportunities for career development and maximising a member of staff’s

• employment potential should be encouraged wherever possible; • there should be consistency in approach between all organisations in terms

of time-scales and processes to ensure equity;

• all job applicants should be treated fairly and with dignity and respect: Principles of equality will apply and the process will be transparent;

• the organisation must commit to securing employment for all staff affected

by the change, including the use of redeployment schemes, trial periods and

retraining; • all appointment decisions should be based on merit and on the suitability of

each candidate for the post, based on an assessment of their knowledge,

skills, experience etc., against the new post’s person specification and job description;

• staff with flexible working arrangements e.g. term-time working, job-share, part-time, should not be disadvantaged by the process. All requests to work

flexibly must be given full and fair consideration;

• full details of available posts in a new structure must be available to all staff (including pay band, title, job description and person specification) and

provided in a timely manner, including to those on an authorised absence;

• where posts or groups of posts are judged not to have altered substantially,

the principles of ‘slotting in’ and ‘prior consideration’ should be applied; • a post may be considered as substantially unchanged if the scope of the role

remains unaltered and it matches ‘two thirds’ or more of an existing job

description and person specification; and • all staff must be considered at each level, in a new structure and the ‘two

thirds’ rule must be applied to determine the status of the post(s).

9.3 Slotting In

Slotting in will apply where a post is substantially unchanged and there is only

one candidate or equal numbers of posts and candidates, who currently

undertake this role. In this circumstance the post would not be advertised and the individual(s) whose post(s) meets the criteria would be slotted into the

post(s).

Consistency in the approach to and the application of the slotting in principles

are essential. A flowchart is attached at Appendix 1, which describes the steps to be followed.

In cases of disagreement about whether the job is substantially unchanged, the

two job descriptions and person specifications will be submitted to an

independent member of the HR team, management and a trade union representative. Anyone involved in the review will have no working relationship

or have had any involvement in previous discussions relating to the review,

with the aggrieved staff member(s). It will be the role of this independent panel to review the original outcome and to reach an objective decision.

Should the staff member(s) continue to disagree with the independent review decision, they may lodge an appeal, in accordance with the appeals procedure contained in paragraph 6.7 of the Grievance Policy set out in Appendix 2 of

this Policy.

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9.4 Prior Consideration

Prior consideration will apply where a post is substantially unchanged (e.g. the

scope of the role remains unaltered and it matches ‘two thirds’ or more of an existing job description and person specification) and there is more than one

potential candidate. Selection will be undertaken by interview (see 9.6 below).

Opportunities for staff development will be considered at every stage of the selection process.

Where a member of staff is eligible to express an interest in more than one post they will be required to indicate their preferences in rank order.

Consistency in the approach to and the application of the prior consideration principles are essential. A flowchart is attached at Appendix 1, which

describes the steps to be followed.

If following the prior consideration process staff are unsuccessful in being allocated to a post, they may be eligible for consideration in respect of a

restricted competition post at the same or a lower level, if there are no other

staff at that level with slotting in or prior consideration rights.

9.5 Restricted Competition Where a post is considered to be new or substantially changed it should be

filled in the first instance by restricting competition to staff affected by the

changes.

It should be noted that the restricted competition principles will not apply to the

of the appointment to Chief Executive and Executive Director / Board Level

Director posts, during the NHS Reform Programme (2009). These new posts will be subject to a separate procedure, as they will in the main be fundamentally different in size, scope and complexity from existing roles in

existing organisations. The procedure for filling these posts is set out in Appendix 5.

9.6 Selection Process Where appointment to a post is subject to prior consideration or restricted

competition, an interview will be the minimum selection process requirement.

The process of selection will be carried out by reference to the relevant job

description and a person specification and KSF Outline (where appropriate), including the following objective criteria, against which the requirements of the

post will be measured:

• qualifications;

• relevant experience; • skills and knowledge and any other particular aptitudes/attributes identified

for the post;

• suitability for trial period/retraining to meet the criteria; and

• the need for reasonable adjustments to posts in accordance with disability

legislation.

Every member of staff involved in the process will be able to receive feedback

on their performance, from a nominated member of the interview selection panel.

9.7 Appealing Against a Decision

In the case of a dispute in respect of the selection procedure associated with

organisational change, a member of staff may lodge a grievance, in accordance

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with the Grievance Policy set out in Appendix 2 of this Policy.

9.8 Actions to be Considered following the Appointment Process

Following the appointment process, the organisation will need to consider the

position of any members of staff not appointed to posts in the new structures.

Every practicable effort will be made to avoid compulsory redundancies. Organisations and affected members of staff are required to further explore the

following options:

• redeployment elsewhere within the organisation;

• redeployment within other NHS bodies within Wales;

• secondment arrangements with other NHS bodies and public sector organisations in Wales where practical and feasible; and

• re-training to undertake a new role.

To reduce the potential for compulsory redundancies, there may be a need to consider the merits of inviting staff to volunteer for early retirement and

redundancy at an early stage and prior to the implementation of the selection

process.

10 Transfer to a New Employer

10.1 The Transfer of Undertakings (Protection of Employment) (TUPE)

Regulations (2006)

The Transfer of Undertakings (Protection of Employment) Regulations (2006)

are commonly known and referred to as the TUPE Regulations. These

Regulations provide employment rights to members of staff when their employer changes as a result of a transfer of an undertaking. The effect of these Regulations is to preserve the continuity of employment and terms and

conditions of those staff that are transferred to a new employer, when a relevant transfer takes place. This means that staff employed by the previous

employer when the transfer takes effect will automatically become employees

of the new employer on the same terms and conditions of service. The Regulations also contain specific provisions to protect members of staff from

dismissal before or after the transfer.

The Regulations therefore ensure that members of staff are not penalised when they are transferred by being placed on inferior terms and conditions.

Therefore, not only are their pre-existing terms and conditions transferred

across on the first day of their employment with the new employer, the Regulations also impose limitations on the ability of the new employer and the

transferred staff to agree a variation to terms and conditions thereafter. 10.2 Cabinet Office Statement of Practice

The Cabinet Office Statement of Practice ‘Staff Transfers in the Public Sector’

(Revised 2007) provides staff with a further reassurance, as it requires the

public sector to treat TUPE as applicable upon any change of employer as a result of reorganisation in the public sector.

10.3 Information Rights The Regulations requires the existing employer to provide information to the

new employer regarding transferring staff, prior to the relevant transfer date. The Regulations state that this information should be given at least two weeks before the completion of the transfer, or if special circumstances make this not

reasonably practical, as soon as is reasonably practicable.

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As such the existing employer is required to provide the new employer with specific information (in writing or other forms which are accessible to the new

employer) which will assist them to understand the rights, duties and their

obligations in respect of the transferring members of staff:

10.4 Consulting with Affected Staff

The TUPE Regulations place a duty on both the existing and new employers to

inform and consult staff who may be affected by the transfer. The Regulations do not prescribe a timescale for such consultations, other than to state that

such consultations should take place “long enough before a relevant transfer to

enable the employer of any affected employees to consult with the appropriate representatives”.

10.4.1Trades Union Members of Staff

NHS Wales encourages all members of staff to join a trades union. Where staff that may be affected by a TUPE transfer are represented by

a recognised trades union(s), the existing employer must inform and

consult with a recognised authorised official i.e. local or full-time officer of that union(s).

10.4.2Non Unionised Members of Staff

Where staff that may be affected by the transfer are not represented by

a recognised trades union, the employer is required to inform and consult with an appropriate representative of these staff.

The employer will enable members of staff who wish to elect a

representative to do so and will inform and consult with them as appropriate.

10.5 Refusal to Transfer It is accepted that some staff will struggle to accept change and may fail to

make the adjustment, and may therefore need to be counselled as to their

options. The legal position of those staff who may decide not to transfer is that they will be voluntarily leaving their employment without any entitlement to

notice or other severance compensation.

Employers should treat such staff sympathetically and arrange to meet with them to fully explore their reasons for refusing to accept a transfer and discuss

alternative re-deployment opportunities should they exist.

10.6 Re-engagement Following Redundancy

For NHS Terms and Conditions of Service purposes, NHS organisations are ‘associated employers’. Therefore if a member of staff is made redundant and accepts and commences a new NHS post within four weeks of leaving the

previous post, they are not entitled to redundancy pay under the regulations.

Steps should therefore be taken by NHS organisations to actively identify and

pursue suitable vacant / advertised posts, to avoid a redundant member of staff receiving a significant redundancy and / or termination payment and then

taking up another post elsewhere in the NHS, after the 4 week period. Detailed

legal advice may be necessary according to the individual circumstances and compliance with DGM (94) 99.

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10.7 Career Planning and Support for Displaced Staff

Local mechanisms will be established to provide support to those staff that are displaced or who may need support to adjust to a new working environment.

The aims of developing such a scheme are to:

• retain skills and experiences within NHS Wales; • avoid unnecessary loss of staff and reduce redundancy costs;

• effectively support individuals whose career is in transition;

• ensure fair and equal treatment of staff across NHS Wales; and • provide personal support for those staff who may not be displaced but who

are generally concerned about the effects of organisational change on them.

11 Alternative Employment

11.1 NHS Reform Programme (2009) Alternative Employment Scheme

During the implementation of the NHS Reform Programme, ‘The NHS Reform Programme (2009) Alternative Employment Scheme’ (Appendix 6) will replace

all local NHS Wales organisational change redeployment policies. During this

period, NHS Wales organisations should continue to operate local schemes to manage redeployments which are not related to the NHS Reform Programme.

All affected NHS Organisations are therefore required to establish and operate

an Alternative Employment Scheme, to ensure that all reasonable efforts are

made to assist staff, where necessary, to find suitable alternative employment, to enable them to continue their careers within the National Health Service.

11.2 Alternative Employment - Principles and Procedures

The following principles and procedures will apply to all NHS organisations when managing internal organisational change within NHS Wales.

11.3 Factors to be Considered When Determining Suitable Alternative

Employment In considering displaced staff for redeployment to particular posts,

consideration should be given to the following significant factors:

• an assessment of the member of staff’s knowledge, skills, qualifications,

experience and competence, against the job description and essential

person specification criteria for the post; • the member of staff’s substantive band / grade;

• all efforts should be made to accommodate the personal circumstances of

the member of staff, which may render a post unsuitable. Personal circumstances may include hours of work, caring responsibilities etc;

• the absence in a new structure of any or all of the principal activities present in any current post;

• the cessation of any funding directly linked to the provision of the service

provided by one or more members of staff;

• the requirement to make reasonable adjustments to posts in accordance

with the Disability Discrimination Act (2005); and • the requirement not to unlawfully discriminate against disabled staff seeking

redeployment opportunities, by providing staff at risk of redundancy with

preferential treatment.

The above criteria are not listed in any particular order or preference.

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11.4 Offers of Alternative Employment

Employers have an obligation to consider alternative employment for potentially redundant staff and should therefore do what they can, so far as is reasonable,

to provide alternative work. There is no obligation on the employer to create

alternative employment for displaced staff at risk of redundancy where no such

opportunities exist. The Employer will therefore seek to offer all displaced or at risk staff with a permanent suitable alternative post.

It is therefore the responsibility of the employer to draw to the attention of displaced or at risk staff the details of job vacancies from within the employers

own organisation and ‘associated employers’ (NHS organisations). Any offer of

alternative employment, which is considered to be suitable should be made in writing, providing sufficient details of the post and allowing reasonable time for

the member of staff to consider it. Any offer should be made as early as

possible, but at least prior to the end of their notice period, if served. The offer

should, where appropriate attempt to indicate the principal ways in which the new post is different from or similar to the old post, to enable the member of

staff to make an informed decision. Any such job offer must be available no

later than four weeks, following the end of the member of staff’s notice period.

The obligation on the employer and the staff member to look for alternative employment continues up to the end of the notice period. Therefore, if an

alternative job becomes available prior to or during the notice period the

employer should make the redundant member of staff aware of the post.

An employer does not have to solely offer an equivalent job at the same status

or level as suitable alternative employment and is also required to offer jobs at

a lower status or level where these are deemed to be suitable. In these circumstances protection of pay will apply.

The employer should however aim to ensure that any such offers of alternative employment:

a) provide similar terms and conditions as attached to the member of staffs previous post in respect of band / grade, pay, contracted hours, career

prospects, geographical location and any other significant conditions; and

b) the organisation will also aim to offer other options and to consider stated preferences, if different from the above.

It should be noted that the question of the suitability of the alternative employment is objective. However, the question of whether a refusal of

suitable alternative employment by a member of staff was reasonable or unreasonable is subjective. When considering the reasonableness of a refusal, the member of staff’s individual circumstances must be taken into account, as

well as their subjective perception of the alternative job, which has been

offered.

Where an organisation creates a new post and it has staff identified as being at

risk of being displaced from their post or under notice of redundancy, the post

will not be advertised via a process of open competition until it has been established that it does not provide suitable employment for displaced staff or

other staff currently seeking redeployment, via the redeployment register.

Where more than one member of staff is at risk of being displaced from their

post or is under notice of redundancy from a similar post, and there is one post

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identified to provide suitable alternative employment, only these staff will be

given the opportunity to apply for the post, in accordance with the normal selection procedures.

A member of staff who accepts a post, which differs in some important

respect(s) from their expressed preference, may ask to be considered for subsequent redeployment to a more suitable position. In so far as is

practicable and consistent with the organisation’s general redeployment policy,

such individuals will be given consideration in filling an agreed position, which subsequently falls vacant.

Where this procedure is followed but the member of staff fails to respond to a redeployment offer, the member of staff shall be deemed to have refused

suitable alternative employment. Should a member of staff refuse a suitable

alternative job offer, as described above, they must understand and be advised

that the organisation may not be able to offer them any other post. The organisation may therefore be obliged to terminate their employment and in

such circumstances the member of staff will lose any right to a redundancy

payment.

11.5 Trial Periods Where an at risk member of staff is considering transfer to an alternative

position they may, by agreement, be allowed to accept such a post for a 'trial

period' under the provisions contained in Section 138 (3) of the Employment Rights Act (1996). Account should be taken of the requirement to make

reasonable adjustments for disabled staff must be fully considered.

In accordance with the statutory redundancy rules, a member of staff is entitled to a four week trial period. Any trial period arrangements should be agreed, in writing before the member of staff begins work under the new contract. The

member of staff should also be provided with details of the assessment that will apply during and / or at the end of the agreed and defined trial period.

The employer and the member of staff may agree to a trial period of longer than four weeks, in limited circumstances. Any such extension must be given to

retrain the member of staff for employment in the new job. An agreement for

an extended trial period must also:

• Be in writing and be agreed before the member of staff begins work under

the new contract;

• State the date on which the retraining will finish, if applicable; and • Identify the terms of employment that will apply to the member of staff after

the retraining period has finished. Where a trial period is successful, the new terms and conditions of service

should apply from the end of the agreed period. The employer should write to

the member of staff to confirm their permanent appointment to the post.

Where a trial is not successful, as a consequence of practical and reasonable

reasons, the member of staff, should, where possible, return to their previous

position. Any such unsuccessful trial period will not normally be taken as a refusal of an alternative offer and the organisation will continue to seek

alternative employment up to the date on which the redundancy dismissal takes effect.

It is recognised that there are often different phases to any reorganisation of

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services or organisations and the ability to retain staff in their original posts

may not be possible after a certain date. It is therefore important to ensure that the principles of this Policy are addressed at an early stage, to maximise the

redeployment opportunities, which may be available, within the organisation

and across NHS Wales.

11.6 Staff not Re-deployed

Active steps will be taken to seek to re-deploy staff to suitable alternative

posts.

Where an organisation cannot find suitable alternative employment for a

member of staff at risk of being made redundant it may have to consider making them compulsorily redundant, in accordance with the provisions set out

in the Employment Rights Act (1996). If such a situation arises the

organisation will utilise the provisions set out in Section 16 of the Agenda for

Change Handbook and Appendix 4 of this Policy.

11.7 Rights of Appeal

In the case of dispute in respect of offers of suitable alternative employment, associated with organisational change, a member of staff may lodge a

grievance, in accordance with the Grievance Policy set out in Appendix 2 of this Policy.

12 Arrangements for Salary Protection

12.1 Definition of Salary Protection

This applies to any member of staff who, as a consequence of organisational

change, incurs a detrimental change of salary. Staff who are required to move to a different post as a result of organisational

change will be entitled to long term protection of salary in accordance with the provisions of their current organisation’s policy on protection of earnings, or

predecessor organisation if involved in a merger or de-merger.

If however the protection arrangements described in this Policy are more

beneficial to a member of staff they can choose to opt for the protection

arrangements outlined below. The arrangements provide:

• Long term protection of basic salary where a lower banding is involved; and

• Protection of certain other conditions of service e.g. pension.

12.2 Short Term Protection of Basic Salary

Short term earnings protection will remain in accordance with current or predecessor Welsh NHS Organisations’ protection policies, until such time as they are replaced by a policy negotiated and agreed on an all Wales basis.

A separate partnership negotiating group will be established by the Welsh

Partnership Forum, during the spring of 2009, to draft an All Wales short term pay protection agreement. Once approved, these arrangements will be

incorporated into this Policy.

12.3 Long Term Protection of Basic Salary

This applies in circumstances where a member of staff is moved to a lower banded / graded post as a result of organisational change. Consequently the member of staff would be entitled to full protection of their substantive salary,

(including National Recruitment and Retention Premium) with benefits of any

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national pay awards, applying to the original band / grade level for the time

periods set out in Table 1 at 12.3.1 below

Additional increments will not be applied to a member of staff in receipt of

salary protection.

The benefit continues for the stated period of protection or until any of the

following factors prevail:

a) the member of staff is appointed to a post in which the normal salary is

equal to or exceeds the protected salary;

b) the member of staff moves on their own application to a post with another employer;

c) the member of staff moves on their own application to a post with a basic

d) salary, which is lower than that of the existing post;

d) the member of staff retires; or e) the basic salary of the post is equal to, or exceeds the protected salary.

If the full period of protection specified in the table above expires before points (a) to (e) above occur, protection will continue on a ‘mark time’ basis until any

of the above factors prevail.

Any additional earnings derived from work in the new post will be remunerated

at the rate applicable to the new post.

When a part time member of staff is moved to a new post and the hours in the

new post are the same, or fewer than before, long term protection entitlement

will be assessed on the basis of actual hours worked in the new post, paid at the hourly rate, applicable to the previous post.

If the hours in the new post exceed hours worked previously, long term protection entitlement will be assessed on the hours worked previously

multiplied by the hourly rate applicable to the previous post. Additional hours in

the post are paid at the hourly rate applicable to the new post.

Staff who are members of the NHS Pension Scheme (with more than 2 years'

pensionable service) who are redeployed, through no fault of their own, to a

post which attracts a lower level of earnings, may by personal application, preserve benefits in respect of service before the reduction in pensionable

salary.

Members of staff who wish to preserve their benefits at the higher rate should

write to their Payroll Services Manager, within 3 months of the reduction in salary.

12.3.1 Length of Basic Salary Protection Period [Table 1]

Reckonable Service

Length of Protection Period

After 2 Years’ Service

6 Months Protection

After 3 Years’ Service 1 Year Protection

After 4 Years’ Service 2 Years Protection



After 15 or More Years’ Service 10 Years Protection

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12.4 Pay Protection Principles

• the Personal Development Plans and where applicable the KSF Outlines should support the objective of getting the member of staff to their previous

banding / grading level;

• protected earnings will only be payable where the move to a new post is

consistent with the member of staff’s redeployment plan; • in the first instance the offer of protected earnings will be restricted to

suitable posts at the same banding or one banding lower;

• a move to a post of more than one banding lower, will only be considered when no other reasonable alternatives for redeployment are available;

• staff in receipt of protected salary may continue to receive prior

consideration for available posts, up to the level of their original (or equivalent) banding / grading; and

• Members of staff can, at any time, opt for the remuneration applying to the

new post and this decision would be irrevocable.

12.5 Criteria for Payment of Protection

Continued payment of protection is dependent upon the provisions below being

met during the period of pay protection:

• the member of staff continuing to apply for any suitable vacancies arising

within the organisation, which provide a more favourable level of earnings,

unless, otherwise agreed. A suitable position will be defined and agreed and

will be determined with reference to the member of staff’s knowledge, skills, experience, mobility and personal circumstances;

• the member of staff taking up any training or development opportunities,

which are offered to improve their chances of obtaining a suitable alternative

post; • the member of staff accepting any offer of a suitable post as defined above,

which would provide a more favourable level of earnings, even though it

does not match the level of earnings of the original post; and • the member of staff continuing to be employed by their organisation.

If any of the above conditions are not met then payment of protection will cease immediately.

13 Excess Travel and Car Parking Staff required to change their base as a result of organisational change will be

reimbursed any excess travelling expenses they necessarily incur for a period of

up to four years, or until new arrangements are agreed between management

and the trades unions. As an alternative to the above, the organisation may offer two years’ excess mileage paid as a lump sum. Lump sum payments will

be subject to a pro rata ‘claw back’ clause should the member of staff leave their employment before the end of the two year period. In certain individual circumstances, alternative arrangements may be agreed by the staff affected,

following negotiation with their trades unions. All arrangements will be in

accordance with relevant tax legislation.

Non driving members of staff will be reimbursed for additional public transport

costs for a period of four years, or are entitled to receive two years’ excess

mileage paid as a lump sum.

The organisation will consider arranging transport for particular groups of staff or to allocating Crown lease cars, in cases where it is practicable and economic to provide such facilities.

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Car parking charges will be reimbursed where a staff member is redeployed

under this policy, to a site where such charges are mandatory and the charges will therefore be necessarily incurred. Reimbursement of car parking charges in

these circumstances will be made for a period of four years. As an alternative

to the above, the Trust may offer two years car parking fees paid as a lump

sum. Lump sum payments will be subject to a pro rata ‘claw back’ clause, should the member of staff leave their employment before the end of the two

year period.

It is recognised that many staff will have to adjust to different travel

arrangements as part of any organisational change. It is further recognised

that any such adjustments may also impact on carer / other domestic commitments. In cases where there is a significant difference in travel time,

flexibility will be given during the first month, to allow for the increased time

required to travel to work. Requests for longer term flexible working should be

raised with the member of staff’s line manager.

14 Relocation / Removal Expenses Organisations should have a relocation / removal expenses policy, which make

provision for the payment of removal expenses, in circumstances where staff

are required to move their home base and the organisation is satisfied that the arrangements proposed are reasonable in the circumstances.

Staff who may be contemplating relocating their home as a result of, or in anticipation of an organisational change process, should obtain confirmation of

their entitlement to relocation / removal expenses, prior to entering into any

binding arrangements.

15 Review, Evaluation and Monitoring Arrangements

15.1 Formal Review This Policy will be reviewed formally by the Welsh Partnership Forum by 2011.

15.2 Evaluation There will be ongoing evaluation of this Policy with the trades unions, staff and

NHS organisations, particularly in the context of equality impact assessments.

15.3 Monitoring A monitoring pro-forma will be developed and the Policy will be monitored, in

partnership, after each organisational change, to ensure that the principles

have been adhered to.

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APPENDIX 1

PROCEDURE FOR FILLING POSTS DURING ORGANISATION CHANGE

• During the NHS Reform Programme (2009) only.

Read in conjunction with the Appendix 6

Job Descriptions and Person Specifications Produced for Posts in the New Structures

Will Your Post Remain Substantially Unchanged? i.e. Matches 2/3rds of New JD / PS

YES NO

Is there 1 or Equal Number of Posts and Candidates?

The Post(s) Will be Subject to Restricted Competition

YES NO

Identify and Confirm Post Holder(s) for Slotting In

Identify Staff for Prior Consideration and Obtain

Preferences

Applicants Interviewed by a Recruitment Panel

Offer of Provisional Appointment Conveyed to Successful Applicants. Unsuccessful Applicants Advised of the Outcome

Any Grievances to be Heard Within 5 Working Days

of Receipt

Appointment Confirmed. Staff Not Appointed

Identified for Posts Subject to Restricted Competition

Identify Staff for Restricted Competition And Obtain Preferences Where Appropriate

Applicants Interviewed by a Recruitment Panel

Provisional Offer of Appointment Conveyed to Successful Applicant. Unsuccessful Applicants

Advised of Outcome

Any Grievances to be Heard Within 5 Working Days of Receipt

Appointments confirmed. Posts not filled to be advertised externally / or Via the *Alternative

Employment Scheme

24

APPENDIX 2

ORGANISATIONAL CHANGE

GRIEVANCE POLICY

1. INTRODUCTION

The National Health Service (NHS) in Wales is committed to promoting good employment relations between its employers and its employees, which includes

the appropriate management of employee grievances.

This Grievance Policy and Procedure may be invoked by any NHS employee,

should they wish to raise and resolve an issue, concern or complaint regarding

the application of the Organisational Change Policy.

Should an employee raise a grievance connected with the Organisational

Change Policy and the matter is not entirely within the control of their

employing organisation (for example; where a third party NHS organisation is involved), the employing organisation should treat the matter in the same way

as any other internal grievance. In such circumstances the employing organisation will be required to make the third party organisation aware of the

grievance and their need to fully engage and participate in, and contribute to

the investigation process. Where appropriate the organisation will also inform the third party organisation of their obligation to be involved in the

implementation of any agreed resolution, decision or recommendations.

It is expected that a grievance and any subsequent appeal related to the Organisational Change Policy will be resolved quickly and where possible, through informal discussions.

2. SCOPE

This policy will apply to all NHS Wales staff who may wish to resolve a grievance issue, concern or complaint regarding the application of the

Organisational Change Policy.

Once an employee has exhausted this grievance procedure, in respect of an issue, concern or a complaint regarding the Organisational Change Policy they

may not raise the matter separately under their local grievance procedure,

should they remain dissatisfied with the decision.

3. PURPOSE

The purpose of this policy is to ensure:

• that the grievance procedure is applied in respect of Organisational Change

Policy, complies fully with the Employment Rights Act (2008) and the ACAS Code of Practice, ‘Discipline and Grievances at Work’;

• that employees raise their grievance with their manager, without unreasonable

delay; • that were possible all potential conflicts of interest in respect of the application

of the Organisational Change Policy are resolved informally by the employee and their manager through discussion, which may take more than one meeting;

• all Organisational Change Policy grievances, are dealt with promptly, fairly and

consistently, using the following procedure;

25

• there are no unreasonable delays in respect of holding grievance meetings /

hearing and communicating verbal and written decisions; • that employers act to resolve grievances, without unreasonable delay;

• employees are given the opportunity to be represented at grievance meetings

by a local trade union representative or trade union official, not acting in a legal

capacity; • employees who are not members of a trade union are given the opportunity to

be accompanied at grievance meetings by a workplace colleague, not acting in

a legal capacity; and • employees are given the opportunity to lodge an appeal against any decision

made following a formal grievance hearing.

4. GRIEVANCE PROCEDURE

The following 3 stage procedure will be applied in all grievances, regarding the

application of the Organisational Change Policy:

Stage 1 Informal Grievance Meeting Within 7 Calendar days

Stage 2 Formal Grievance Hearing Within 14 Calendar days

Stage 3 Grievance Appeal Within 21 Calendar days

Set out below are the informal and formal steps of the Organisational Change Policy Grievance Procedure.

4.1 Step 1 – Informal Grievance Procedure and Meeting

An employee should, where reasonable and practicable, raise their grievance

informally with their manager, where they believe that the matter can be dealt

with and resolved using this mechanism.

At this stage of the procedure, the grievance will be managed via a process of

informal discussion between the manager and the employee and this should

take place within 7 calendar days of the matter being raised. Where the employee’s manager is the subject of the grievance, the matter should be

referred to the next appropriate level of management The employee may bypass this stage of the procedure, should they wish their

grievance to be dealt with formally.

4.2 Step 2 – Submitting a Formal Grievance

Where an employee wishes to proceed directly to the formal stage of the procedure or they have attempted to raise the matter with their manager

informally, without success, they should raise their grievance, formally in

writing by completing the Grievance Registration Form at Appendix 3.

The employee is required to set out the basis of their grievance and send a

copy to their manager for action and a copy to the Human Resources

Department for information. The formal Grievance Registration Form must clearly state that the grievance relates to the application of the Organisational

Change Policy.

4.4 Step 3 – Invitation to a Formal Grievance Hearing The manager should write to the employee acknowledging receipt and inviting

them to attend a grievance hearing. This correspondence should also confirm

the employee’s right to be represented by a local trade union representative / trade union official or accompanied by a workplace colleague, not acting in a

legal capacity.

26

A grievance hearing should normally be held within 14 calendar days of receipt of the written grievance, unless all parties have mutually agreed an alternative

timescale.

4.5 Step 4 – The Grievance Hearing

The employee will be entitled to be represented by a local trade union

representative / trade union official or accompanied by a workplace colleague,

not acting in a legal capacity.

At this stage of the procedure, the grievance will be managed via a process of

formal discussion between the manager nominated to hear the grievance and the employee.

The manager nominated to hear the grievance may request for the meeting to

be adjourned for an agreed period of time, should they believe that a further investigation of the facts is necessary or to investigate any new facts, which

may arise.

Where the nominated manager reconvenes the hearing to communicate their

decision verbally, they are still required to provide a detailed written grievance decision and to include reasons for the decision on the Grievance Registration

Form.

4.6 Step 5 – Written Grievance Decision

The manager nominated to hear the grievance is required to communicate the

decision to the employee in writing, without unreasonable delay. The written

grievance decision will normally be provided within five working days of the grievance hearing. This timescale may be extended by mutual agreement between the nominated manager and the employee, should additional time be

request by the manager to reflect on and consider the facts.

The written grievance decision should set out clearly whether or not the

employee’s grievance has been upheld and their right of appeal, should they be dissatisfied with the decision or proposed actions.

Where an employee’s grievance has not been upheld the nominated manager

should ensure that the reasons for this decision are fully explained in the written grievance decision.

Where a grievance is upheld, the written decision should confirm what action will be taken to resolve the matter.

4.7 Step 6 – Formal Grievance Appeal

Should an employee be dissatisfied with the nominated manager’s decision,

they have a right of appeal. The employee must submit their written appeal to

the Director of Human Resources, as soon as possible but within five working

days of receipt of the written grievance hearing decision. This correspondence should clearly set out the ground for their appeal.

The Director of Human Resources upon receipt of the letter of appeal should invite the employee to attend an appeal hearing, which will be heard by an

impartial and more senior manager, who has not previously been involved in the case. This correspondence should also confirm the employee’s right to be represented by a local trade union representative / trade union official or

accompanied by a workplace colleague, not acting in a legal capacity.

27

The appeal hearing will normally be held within 21 Calendar days of receipt of the letter of appeal, unless all parties have mutually agreed an alternative

timescale.

Where the senior manager nominated to hear the appeal reconvenes the appeal hearing to communicate their decision verbally, they are still required to

provide a detailed written appeal decision and to include reasons for the

decision on the Grievance Registration Form.

4.8 Step 7 – Written Appeal Decision

The senior manager is required to communicate the appeal decision to the employee in writing, without unreasonable delay. The senior manager will

therefore normally provide their written appeal decision within five working

days of the appeal hearing. This timescale may be extended by mutual

agreement between the senior manager and the employee, to allow additional time for further reflection and consideration of the facts.

The written appeal decision should clearly set out whether or not the employee’s appeal has been upheld and ensure that the reasons for this

decision are fully explained.

Where an employee’s appeal has not been upheld, the senior manager should

ensure that the reasons for their decision are fully explained in the written appeal decision.

Where a grievance is upheld, the written appeal decision should confirm what

action will be taken to resolve the matter. This decision will be copied to the manager, to ensure that the agreed actions are implemented, monitored and reviewed by them, as appropriate, to ensure the matter(s) raised are dealt with

effectively and to the satisfaction of the employee.

The written appeal decision should also confirm that this decision is final and

that there is no further recourse to the organisation’s local grievance policy and procedure, in respect of an issue, concern or complaint regarding the

application of the Organisational Change Policy and / or the management of

organisational change.

28

APPENDIX 3

ORGANISATIONAL CHANGE GRIEVANCE REGISTRATION FORM

Employee’s Name

Job Title

Department

Organisation

Name of

Representative (If applicable)

GRIEVANCE DETAILS

To be Completed by the Employee: Please set out below the detail(s) of your grievance:

Remedy being sought. Please indicate below how you would like to see the matter resolved:

Signed: Date:

29

FORMAL GRIEVANCE MEETING

Date Grievance Referred to Formal Stage:

To be Completed by the Manager Hearing the Grievance: Please set out below the decision(s) reached.

Date of Grievance Hearing:

Employee’s Signature: Date:

Relevant Manager’s Signature: Designation:

GRIEVANCE APPEAL HEARING

Date Grievance Referred to Appeal Stage:

To be Completed by the Manager Hearing the Grievance: Please set out below

the decision(s) reached.

Date of Appeal Hearing:

Relevant Manager’s Signature: Date:

Designation:

30

APPENDIX 4

REDUNDANCY POLICY

1 Statement of Intent 1.1 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 (1), Employment Rights Act 1996).

NHS Wales organisations are committed, as far as is possible, to providing

continued employment for existing permanent staff. These organisations are

therefore required to take all reasonable, practical and affordable steps to retain valuable skills, knowledge and experience and void making staff

compulsorily redundant.

This Policy sets out all the measures which organisations must explore to avoid compulsory redundancy and the procedure to be followed, in the event of compulsory redundancy having to be affected.

The organisations will:

• encourage full and open consultation with staff and their representative(s)

during a period of change, which may result in redundancy; • facilitate the redeployment of staff;

• ensure appropriate and fair processes are followed; and

• endeavour to ensure that wherever possible, or affordable, reductions in staff

numbers are achieved through natural wastage, or by means of voluntary early retirement or voluntary early redundancy.

2 Procedures 2.1 Consultation

Where it is evident or strongly suspected that changes planned will have a significant impact on staff contracts or will result in redeployments or

redundancies, then the statutory requirements concerning the provision of

information to, and consultation with, recognised trade unions/staff

representatives will be followed. Members of staff at risk of redundancy will have the right to representation throughout the process.

Management must do their utmost in all circumstances to ensure that the

consultation process commences at the earliest possible stage.

2.2 Measures to be Taken to Minimise or Avoid Redundancies Wherever practicable all possible steps will be taken to minimise or avoid redundancy as follows:

31

• forward planning of staff needs and developing recruitment plans, as far ahead as is reasonably practicable;

• reductions in overtime;

• redeployment and retraining;

• natural wastage/retirements; • non-renewal of temporary employment contracts;

• review possibility of moratorium in external advertising for affected

posts/grades; and • holding vacancies.

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:

• nature of the job; • salary (including any pay protection arrangements);

• qualifications, knowledge and skills required;

• career prospects; • hours and how worked;

• geographical location; • working environment; and

• personal and/or domestic circumstances;

In relation to personal circumstances staff will be expected to show some

flexibility, by adapting their domestic arrangements where this is reasonably

practicable.

Organisations are required to inform staff who are at risk of being displaced or under notice of redundancy, in writing, of any suitable alternative employment

opportunities. Staff in identified at risk posts or under notice of redundancy are also required to make every effort to draw to the attention of their organisation,

any vacancies that they consider to be suitable.

The potential for training / retraining displaced and at risk staff will also be

considered when considering applications from these staff and when assessing

their suitability for vacant posts.

Where staff express an interest in a promotional post, appointment will be by

open competition.

Redeployment to vacant posts, at a lower salary, will only be considered as an

option where it is clear that the alternative is dismissal by reason of redundancy. Protection of earnings in such circumstances will be in accordance with arrangements contained within Section 11 of this Policy. In such circumstances

the member of staff will have a joint responsibility to actively seek a suitable post,

commensurate with the level of the protected grade.

Any offer of alternative employment, which is considered to be suitable should be made in writing, providing sufficient details of the post and allowing reasonable

time for the member of staff to consider it, prior to expiry of the notice period.

The offered alternative post should be available no later than four weeks, from the date the old contract expires. The offer should, where appropriate attempt to

indicate the principal ways in which the new job differs from the old. Where this is procedure is followed but the member of staff fails to respond to any such offer,

32

the member of staff shall be deemed to have refused suitable alternative

employment.

The acceptance of any alternative employment, which is considered suitable, may

by agreement be subject to a 4 week trial period. Trial period arrangements,

including mechanisms for assessment and review should be agreed between the manager and the member of staff before the trial period begins.

If during the trial period it becomes clear that the redeployment is not in fact suitable, this will not affect the member of staff’s entitlement to any redundancy

payments that might be due under their old substantive contract. Redundancy

payments will be put at risk if a member of staff withdraws without reason from an agreed trial arrangement.

2.3 Selection Methods

Selection methods will be agreed locally according to the circumstances of the reduction in posts, the staff groups involved and the requirements of the

service and the organisation following the change. Any or all of the following

may be considered as criteria for selection, bearing in mind the requirement that selection must be based on objective criteria;

• length of service;

• attendance record;

• sickness record (use of this criteria must be carefully managed in accordance with the Disability Discrimination Act (1995);

• ddisciplinary record;

• qqualifications;

• skills; • competencies; • work experience; and

• performance records (based on formal documented and objective evidence e.g. performance management / development review documentation.

The organisation must take care when designing and applying their selection criteria, to avoid using factors, which may directly or indirectly discriminate

against any member of staff, on the grounds of gender, ethnic origin, disability,

religion or belief, age, sexual orientation, pregnancy, part-time employment

status, trade union membership.

2.4 Time Off to Look for Work

Staff will be given reasonable time off, with pay and reimbursement of expenses, to consult with management, trade union 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.

2.5 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 to current vacancies.

2.6 Additional Assistance

Each member of staff who is displaced or at risk of redundancy will be given the opportunity for individual counselling, including provision of information about: • entitlements to payments;

• pension calculations [if relevant];

33

• suitable alternative employment opportunities;

• preparation of a curriculum vitae, applications and interview skills; • other agencies which may assist e.g. Benefits Agency, Tax Office etc; and

• assistance in obtaining financial advice.

2.7 Notice Periods Contractual notice should be served to any staff that are given notice of

termination of employment by reason of redundancy.

Circumstances will dictate whether the organisation can offer a notice period

which is longer than the member of staff’s contractual notice. Notice periods

may be extended, to maximise the opportunity to find the member of staff suitable alternative employment.

Subject to mutual agreement a member of staff may leave before the expiry of

their notice period if:

• they obtain other employment outside of the NHS. In such a circumstance

the new termination date will become the revised date of redundancy, for the purposes of redundancy calculations; or

• the member of staff, after having been given notice by their employing organisation, gives written counter notice, which with agreement may be

less than the contractual period, with no loss of redundancy payment rights.

A member of staff may also be required to leave if:

• they engage in conduct resulting in another reason for dismissal, during

their redundancy notice period. In respect of the above, the organisation reserves the right to make an outright

payment in respect of notice and the redundancy entitlement, by way of full and final settlement, subject to statutory regulation.

2.4 Equal Opportunities In applying this Redundancy Policy, organisations will ensure that any proposed

arrangements do not discriminate on the basis of disability, pregnancy, race,

religious belief, gender, sexual orientation, trade union membership or age

(except in so far as it is affected by the age retirement policy) etc. Part time staff should be treated in the same way as full time staff in all respects.

3 Entitlements of Staff Who Are Redundant 3.1 All NHS staff who are eligible to receive a redundancy payment will have their

entitlement calculated and paid in accordance with Section 16 (Redundancy Pay) of the Agenda for Change NHS Terms and Conditions of Service Handbook,

as amended on 30 April 2007.

3.2 NHS Staff who:

• are members of the NHS Pension Scheme; and

• have at least two years’ continuous full time or part time service; and • have two years’ qualifying membership of the Scheme; and

• have reached the minimum pension age, may choose to retire early without reduction in the value of pension benefits as

an alternative to receiving the full redundancy lump sum benefit, in accordance

34

with Section 16 (Redundancy Pay) of the Agenda for Change NHS Terms and

Conditions of Service Handbook.

3.3 It should be noted that these redundancy pay provisions apply to all NHS staff

not just those staff covered by the Agenda for Change Terms and Conditions of

Service.

4 Right of Appeal 4.1 Redundancy Process Grievances

In the case of dispute in respect of the redundancy process, associated with

organisational change, a member of staff may lodge a grievance, in accordance with the Grievance Policy set out in Appendix 2 of this Policy.

4.2 Dismissal Process

Staff who are served notice of redundancy must be advised of their right of appeal. Any such appeal should be lodged within 21 days of the date of the

letter of notice. Such appeals will be managed and conducted in accordance

with the relevant organisation’s dismissal procedure.

35

APPENDIX 5

NHS REFORM PROGRAMME (2009)

RECRUITMENT AND SELECTION PROCEDURE FOR NEW LOCAL HEALTH BOARD ORGANISATIONS

CHIEF EXECUTIVE AND

EXECUTIVE DIRECTOR/BOARD LEVEL DIRECTOR POSTS

1. INTRODUCTION This paper summarises the process to be applied to the recruitment to Tier 1 and

Tier 2 posts as part of the NHS Reform Programme. For the purpose of this process

the new LHB organisations’ tiers have been defined as follows:

LHB Tier 1 Posts - Chief Executive Officers

LHB Tier 2 Posts - Executive Directors, Board Level Directors

2. SUMMARY

A summary of the procedure is outlined below:

• Chief Executive (Tier 1) and Executive Director/Board Level Director (Tier 2) posts of the new LHBs are designated as new posts as they are significantly different in

size, scope and complexity from existing roles in existing organisations, with the

exception of Powys LHB;

• new Chief Executive posts will be advertised nationally and subject to open competition. New Executive Director/Board Level Director posts will be advertised internally within NHS Wales. Appointments to all other Tiers will be managed on a

local health community basis; • current Chief Executives and Executive Directors/Board Level Directors will be

expected to apply for a post(s) at the ‘highest appropriate tier’ in the new LHBs,

based on their skills, knowledge and experience in relation to the new post and not based on their current post title;

• current Chief Executives and Executive Directors/Board Level Directors can apply

for posts in up to two sequential tiers. If shortlisted at the higher tier, but

unsuccessful, then a further application should be made at the next hierarchical tier. If not shortlisted at the higher tier then applications can be made at a further

two tiers. Please refer to flow charts in Appendix 1 and 2;

• there is no limit on the number of post types or locations that can be applied for by any individual at each tier; and

• current Chief Executives and Executive Directors/Board Level Directors can commence applying for posts at tiers below 1 and 2 within their local health community, if these are considered to be the highest appropriate tiers based on

skills, knowledge and experience.

This procedure is outlined in detail below.

3. SCOPE This procedure will apply to all substantive NHS Wales Chief Executives and

Executive Directors/Board Level Directors who have been advised that they are ‘at risk’ during the NHS Reform Programme.

36

This procedure will also apply to substantive Chief Executives and Board Level

Directors who were ‘displaced’ during the 2008 Mergers and have not been offered a permanent alternative post.

4. BACKGROUND This procedure has been developed following consultation with a range of

stakeholders. The NHS Reform Programme will establish new organisations which

integrate the functions of existing NHS Trusts (excluding the Welsh Ambulance Service and Velindre NHS Trust) and existing LHBs (including Powys LHB).

With the exception of Powys LHB It is recognised that the structures and functions of the new Local Health Boards (LHBs) will be significantly different in size,

complexity and scope from predecessor organisations.

The establishment of these new organisations has necessitated the creation of new Tier 1 and Tier 2 posts which, following Welsh Assembly Government assessment,

have been determined as new posts as they do not mirror the size, scope or

responsibilities of the current post holders.

Current substantive NHS Wales Chief Executives and Executive Director/Board Level Directors who have been advised they are ‘at risk’ during the NHS Reform

Programme and whose job title is identical or similar to the new LHB Tier 1 and

Tier 2 job titles, will therefore have no ‘slotting in’ or ‘prior consideration’ rights.

It is envisaged that there will also be new posts at Tiers 3 and 4 within the new

LHBs, which will provide suitable alternative employment opportunities for ‘at risk’

Chief Executives.

In addition to the above it is also envisaged that there will be ‘new’ posts at Tiers

3, 4 and 5 within the new LHBs, which will provide suitable alternative employment opportunities for ‘at risk’ Board Level Directors.

At the time of writing (February 2009) the number and types of any new posts at Tiers 3 and below are unknown. Detail will evolve as organisational sub structures

are developed and implemented by the new LHBs.

5. ADVERTISING POSTS IN THE NEW ORGANISATIONS

5.1 New Tier 1 LHB Posts – Chief Executive

All of the Tier 1 Chief Executive posts will be advertised openly, with no restrictions on applications.

5.2 New Tier 2 LHB Posts – Executive Directors/Board Level Directors

All of the Tier 2 Executive Director / Board Level Director posts will be

advertised internally within NHS Wales. Applications will be restricted to NHS

Wales employees in the first instance.

5.3 New Tier 3, Tier 4 and Tier 5 LHB Posts

It is envisaged that at Tiers 3, 4 and 5 of the new structures there will be a

mixture of new posts and posts which have not altered substantially from those which existed in the former NHS Wales organisations. Appointment to any of

these posts will be managed locally by the new organisations in accordance with the Organisational Change Policy, which will include displaced individuals from Tiers 1 and 2 at the restricted competition stage. Where a post is judged

not to have altered substantially the principles of slotting in and prior

37

consideration will be applied. Displaced individuals from Tiers 1 and 2 may be

considered at the restricted competition stage but not before staff at those levels with slotting in or prior consideration rights.

6. RECRUITMENT AND SELECTION PRINCIPLES The following principles will be applied to the new Tier 1, Chief Executive and Tier

2, Executive Director/Board Level Director posts, during the recruitment and

selection process. Appendix 1 and Appendix 2 of this procedure contain flow charts which summarise the agreed stages of this process and associated outcomes:

• all short listed applicants for these new posts must demonstrate, via the recruitment and selection process that they meet the agreed selection criteria;

• Chief Executive and Executive Directors/Board Level Directors will be expected to

apply for a post(s), at the highest appropriate tier within the new LHBs;

• Chief Executive and Executive Directors/Board Level Directors’ application choices should be based on an assessment of their knowledge, skills, qualifications,

experience and competence, against the job description and essential person

specification criteria for the new post, rather than their current post title; • Chief Executives and Executive Directors/Board Level Directors are expected to

apply for a post or posts at the two highest appropriate sequential tier levels, during this process. Within each of their selected tiers they may apply for more

than one of the advertised posts;

• where a Chief Executive or an Executive Director/Board Level Director applies for a post or posts at their selected tier level and they are not short listed for interview,

they will be expected to apply for a post or posts at the next tier;

• Chief Executives will not be expected to apply for posts below Tier 4 in the new

LHB organisations; • Executive Director/Board Level Directors will not be expected to apply for posts

below Tier 5 in the new LHB organisations;

• Chief Executives and Executive Directors/Board Level Directors should seek appropriate advice if they are unsure of the highest appropriate tier of post(s), for

which they should apply. This advice may for example be sought from Designate

Chairs, Designate Chief Executives, Chief Executive NHS Wales, Director of HR, NHS Wales, NHS Wales Professional Heads, health community Human Resources

Directors or trade union representatives;

• where a Chief Executive or Executive Director/Board Level Director self determines

that they do not meet the agreed selection criteria for the Tier 1, Chief Executive Posts or the Tier 2, Executive Director/Board Level Director posts, they should

discuss the matter with an appropriate senior manager, before making their final

application choices, and in advance of the application closing date. This discussion will ensure that the member of staff does not incorrectly exclude themselves from

applying for a suitable post(s), within the new LHBs; • the HR Division of the Welsh Assembly Government will monitor applications from

Chief Executives and Executive Directors/Board Level Directors, to ensure that

they apply for appropriate Tier 1, Chief Executive and Tier 2, Executive

Director/Board Level Director posts. Where it is identified that these staff are not

applying for appropriate posts, an appropriate individual will be identified to meet with them to discuss the matter and agree a way forward;

• where a Chief Executive or an Executive Director/Board Director applies for a post

and they are subsequently short listed, interviewed and offered the post, there is an expectation that they will accept the offer. Should a Chief Executive or

Executive Board Director be offered a post they have applied for and they subsequently decline the offer (with no other offer(s) forthcoming) it will be deemed that they have refused an offer of suitable alternative employment which

may affect their employments rights;

38

• where a Chief Executive or Executive Director/Board Level Director wishes to apply

for a post lower than Tier 2, they may only apply for posts at this level which are not subject to ‘slotting in’ and ‘prior consideration’ principles;

• where a Chief Executive or Executive Director/Board Level Director wishes to apply

for more than one post type they are required to submit separate applications, in

accordance with the recruitment application process; and • where a Chief Executive or Executive Director/Board Level Director has an issue,

concern or complaint regarding the application of this procedure which cannot be

resolved informally, they should seek to resolve the matter via the Grievance Policy, contained within the Organisational Change Policy.

7. EMPLOYMENT AND PAY PROTECTION

• Chief Executives and Executive Directors/Board Level Directors must actively

participate in this process in order to ensure that their employment rights are fully

protected; • subject to the provisions of Section 6 above, employment rights will not be

jeopardised if a Chief Executive, Executive Director/Board Level Director

commences applying for posts below Tiers 1 or 2 where this is the highest appropriate tier based on their skills and experience;

• if a Chief Executive, Executive Director/Board Level Director turns down an offer of suitable alternative employment, they may be placing certain of their employment

rights at risk;

• where appointed to posts below their current substantive salary, Chief Executives, Executive Directors/Board level Directors will receive pay protection in line with the

Organisational Change Policy; and

• if any Chief Executive or Executive Director/Board Level Director does not secure a

post during this process they will join the Alternative Employment Scheme which is outlined in the Organisational Change Policy.

8. EQUALITY STATEMENT

In the application of this procedure all staff will be treated with dignity and respect

and in accordance with equality and human rights legislation. No individual will be treated less favourably on the basis of age, (except in so far as it is affected by the

age retirement policy) disability, gender or transgender, race, religion and belief

and non-belief, sexual orientation, pregnancy, hours worked (full-time or part-

time) or trades union membership etc.

During the implementation of this procedure, reasonable care will be exercised to

ensure that processes comply with all relevant legislation and do not unfairly discriminate against any member of staff, on any of the above grounds.

39

Current CEO Applies for new

Tier 1 Post

Applicant is shortlisted and successful

Applicant is shortlisted and successful.

Applicant is shortlisted but unsuccessful. They may apply for posts at

Tier 2.

Applicant is not shortlisted. They may apply for posts at Tier 2

and Tier 3.

Applicant shortlisted but unsuccessful. Applicant will

join the Alternative Employment Scheme.

Applicant is not shortlisted. They may apply for Tier 3

Applicant is shortlisted but unsuccessful. Applicant will



KEY:

Yellow:

Continuing Pathway

Green:

Successful Outcome

Red:

Unsuccessful

Outcome

Current CEO Applies for new Tier 2 Post


If current Executive Directors or Board Level Directors apply at tier 1, this diagram will apply

Appendix 1

Diagram 1

See Diagram 2

40

Current CEO Applies for new

Tier 2 Post




Tier 3.


and Tier 4.



Applicant is not shortlisted or has only been shortlisted once.

They may apply for Tier 4.




KEY:

Yellow:

Continuing Pathway

Green:

Successful Outcome

Red:

Unsuccessful

Outcome



Appendix 1

Diagram 2

41

Ff

Current ED/BLD Applies for new

Tier 2 Post




Tier 3.


and Tier 4.


join the Alternative

Employment Scheme.

Applicant is not shortlisted. They may apply for Tier 4




KEY:

Yellow:

Continuing Pathway

Green:

Successful Outcome

Red:

Unsuccessful

Outcome


Tier 3 Post


Tier 4 Post

Appendix 2

Diagram 1

See Diagram 2

If current Executive Directors or Board Level Directors apply at tier 1, Appendix 1, Diagram 1 will apply

42

Ff


Tier 3 Post




Tier 4.


and Tier 5.


join the Alternative

Employment Scheme.

Applicant is not shortlisted or has only been shortlisted once. They may apply for Tier 5.




KEY:

Yellow:

Continuing Pathway

Green:

Successful Outcome

Red:

Unsuccessful

Outcome


Tier 4 Post


Tier 5 Post

Appendix 2

Diagram 2

43

APPENDIX 6

NHS REFORM PROGRAMME (2009)

ALTERNATIVE EMPLOYMENT SCHEME

1. INTRODUCTION

The National Health Service (NHS) in Wales is committed to attracting and

retaining excellent, committed staff and values the depth and breadth of experience, knowledge and skills that they hold and contribute to the service.

The changing needs of the NHS in Wales, as a result of the NHS Reform Programme and the requirement to pro-actively manage these changes, means

that some staff may need to be redeployed into alternative roles, should they

be displaced from their current post or be at risk of redundancy. In these

circumstances, it is recognised that the staff affected will have experience, knowledge, skills and expertise, which will enable them to continue to

contribute to the success of the new Local Health Board (LHB) organisations,

should they be given suitable opportunities to do so.

It is the responsibility of each of the new LHB / Trust organisations to make all reasonable efforts to assist staff, where necessary to find suitable alternative

employment, to enable them to continue their careers within the National

Health Service.

During the period of NHS Reform, the Alternative Employment Scheme will

replace all former local NHS Wales organisational change redeployment

arrangements, with the exception of ill health related redeployment schemes. This Scheme does not affect the individual protection arrangements already in place for those members of staff who may have been redeployed prior to this

date. Following the implementation of the NHS Reform Programme, all NHS Wales Organisations should revert to using their locally agreed redeployment

policies, when dealing with ‘displaced’ and ‘at risk’ members of staff.

2. SCOPE This Scheme will apply to all NHS Wales staff who have been displaced from

their former role or identified as being ‘at risk’ of redundancy, as a result of the

NHS Reform organisational change process.

Members of staff will become eligible to be placed on their local Register, once

it has been confirmed that they have been unsuccessful in securing a suitable post within a new LHB organisation.

Each NHS Organisation should have a designated local NHS Reform Programme Alternative Employment Scheme, in place and operational from the 1st October

2009. Prior to this date, it is expected that members of staff who are displaced

or identified as being at risk of redundancy during the early implementation

phase of the NHS Reform Programme, will be managed in accordance with the principles set out in this Policy.

Eligible members of staff shall be placed and remain on the Register for a maximum period of 12 months. It is anticipated that NHS organisations, in

conjunction with their designated NHS Reform Programme alternative employment teams will find scheme registrants suitable alternative employment, within six months of initial registration.

44

All staff that are placed on the NHS Reform Programme Alternative Employment

Scheme Register will have all of their employment rights protected.

3. PURPOSE The purpose of this Scheme is to:

• ensure that a fair, equitable and consistent approach is adopted in the

management of alternative employment during the implementation of the NHS

Reform Programme; • maintain continuity of service and service efficiency and effectiveness during

the implementation of the NHS Reform Programme;

• ensure that all staff remain valued and that their ongoing contribution to NHS Wales is recognised and supported during this period of organisational change;

• provide effective and ongoing support to members of staff who have been

displaced from their current post or have been identified as being at risk of

redundancy; • assist and support ‘displaced’ or ‘at risk’ members of staff to find suitable

employment and where possible provide for their career development and

aspirations; and • ensure that NHS Wales organisations meet all of their relevant legal obligations,

as regards finding suitable alternative employment for staff at risk of redundancy, in accordance with the Employment Rights Act 1996.

4. EQUALITY STATEMENT

All staff considered within this Scheme will be treated with dignity and respect

and in accordance with equality and human rights legislation. No individual will

be treated less favourably on the basis of age, (except in so far as it is affected

by the age retirement policy) disability, gender or transgender, race, religion and belief and non-belief, sexual orientation, pregnancy, hours worked (full-time or part-time) or trades union membership etc.

During the implementation of this Policy, the employing NHS Organisation must

take reasonable care to ensure their processes and procedures comply with all

relevant legislation and do not unfairly discriminate against any member of staff on the above grounds.

Selection for suitable alternative employment or training / re-training will be on

the basis of the member of staff’s qualifications, knowledge, skills and relevant experience, against the job description, essential person specification criteria

and requirements of the job.

5. ROLES AND RESPONSIBILITIES The effective operation of this Scheme is dependent on the full cooperation of all Welsh NHS organisations’ executive teams and managers. These individuals must work collaboratively, to ensure that all appropriate vacancies are made

available to staff registered on NHS Reform Programme Alternative

Employment Scheme across NHS Wales and where appropriate suitable

candidates are appointed to these posts.

NHS Wales organisations will therefore not arrange open competition interviews

for posts identified as being suitable alternative employment opportunities, until eligible candidates from the alternative employment registers have been

interviewed for these posts.

45

5.1 Executive Alternative Employment Lead

Each NHS organisation across Wales will be required to identify an executive alternative employment lead, who will have overall organisational responsibility

for ensuring the effective resourcing and operation of their local NHS Reform

Programme Alternative Employment Scheme. It will also be their role to

facilitate local discussions with senior mangers and appointing managers within their own organisation, as well as cross organisational discussions with their

counter-part executive leads across NHS Wales, where it is identified that there

are challenges, which may be preventing a member of the staff on the register being deployed to a suitable alternative post.

5.2 Senior Management Alternative Employment Lead The executive team of each NHS Wales Organisation will be required to appoint

a dedicated senior management lead, with responsibility for setting up and

strategically managing the local NHS Reform Programme Alternative

Employment Scheme.

It will be the responsibility of the senior management lead, to establish a

dedicated and appropriately resourced alternative employment team, who have the necessary knowledge and skills, to efficiently and effectively support staff

on this and to manage the process on a day to day basis.

Where it is brought to the senior management lead’s attention that the

alternative employment team are experiencing difficulties in respect of an individual’s redeployment, for whatever reason, they will be required to

intervene to try to find an appropriate solution, using the appropriate

mechanisms at their disposal.

Where the senior management is made aware that a difficulty relates to a

former Tier 1 Chief Executive or Tier 2, Executive Director / Associate Board

Director member of staff, they will immediately discuss the matter with the designated executive alternative employment lead. In such instances the

executive lead will use the appropriate mechanisms at their disposal to resolve

the matter.

5.3 Head of Department

Initially responsibility for finding suitable alternative employment opportunities

will lie with the ‘displaced’ and / or ‘at risk’ member of staff’s head of department*.

The head of department* will be required to make every effort to find a suitable alternative position for affected member of staff within their new structure.

5.4 Alternative Employment Manager

All NHS organisations are required to appoint a local alternative employment scheme manager. It will be the role of the alternative employment scheme

manager to:

• manage the alternative employment team and operationally manage the

* NB. This responsibility may rest with the head of department, functional head, line manager or professional lead, depending on the organisations structure.

46

alternative employment scheme;

• liaise and work collaboratively with the other NHS Wales alternative employment manager regarding suitable alternative employment vacancies;

• ensure that candidates that meet the essential short listing criteria are

offered a ‘guaranteed interview’;

• where possible assist members of staff on the register to secure suitable alternative employment within six months of registering on the Scheme;

• liaise with the senior management / executive alternative employment lead,

where a registered member of staff declines to apply for an identified suitable alternative employment post, which has been brought to their

attention;

• liaise with the senior management / executive alternative employment lead, where an appointing manager fails to short list a member of staff on the

register for an identified suitable alternative employment vacancy, to ensure

the matter is investigated and resolved appropriately and in a timely

manner; • provide feedback to the member of staff following the guaranteed interview

process, as appropriate;

• as appropriate approve requests from staff on the register in respect of funding for training, to enable them to update their skills and / or knowledge

or to re-train for work of a different type or in a different discipline / field; and

• develop a local NHS Reform Programme Alternative Employment Database.

5.5 Alternative Employment Team

All NHS organisations are required to establish an appropriately resourced local

alternative employment team. It will be the role of the alternative employment

team to: • maintain and keep up to date the local NHS Reform Programme Alternative

Employment Database; • make regular contact with each member of staff registered on the Scheme;

• provide support and to work closely with staff on the register to assist them

to secure substantive employment, prior to their scheme expiry date; • provide members of staff on the register with all of the necessary and

relevant information, in respect of alternative employment opportunities, to

assist them to assess and make an informed decision regarding the

suitability of the post; • assist members of staff on the register to access NHS jobs and where

appropriate download vacancy information on their behalf;

• assess the suitability of a vacancy, with members of staff on the alternative employment register, with particular reference to the person specification,

job description and any other information available, which is relevant to vacancy;

• ensure that all appropriate internal and external vacancies are discussed and

made available to staff on the alternative employment register;

• where necessary, assist registered members of staff to apply for suitable

alternative posts, where it has been identified that they meet the essential selection criteria for a post;

• inform the alternative employment manager should a registered member of

staff decline to apply for an identified suitable alternative employment post, which has been brought to their attention;

• manage and process requests from staff on the register in respect of funding for training, to enable them to update their skills and / or knowledge or to re-train for work of a different type or in a different discipline / field;

• ensure staff have access to counselling / careers advice services,

47

communicating the availability of such services as appropriate;

• ensure the timely provision of feedback following guaranteed interviews, as appropriate; and

• manage the administration associated with the scheme, any agreed pay

protection, terms and conditions protection, and excess mileage payments

arrangements etc.

5.6 Member of Staff

All members of staff that are ‘displaced’ or identified as being ‘at risk’ of redundancy, as a result of the NHS Reform Programme Organisational Change

process will be registered on their local NHS Reform Programme Alternative

Employment Scheme. It will be the responsibility of these members of staff to:

• maintain regular contact with their local alternative employment team;

• regularly access NHS jobs and other relevant recruitment mediums to assist

in the identification of potentially suitable internal and external vacancies; • consider and pursue all reasonable suitable alternative employment

opportunities;

• contact their alternative employment team, should they require any additional information regarding a potential suitable post, to enable them to

make an informed decision regarding the suitability of the vacancy; • consider alternative posts, which would be regarded as suitable except for

the rate of pay, terms and conditions of service, location etc. In such

circumstances the employing organisation will give full and fair consideration to offering pay and / or terms and conditions of employment protection and

/ or excess travel expenses etc. in accordance with the provisions set out in

the Organisation Change Policy;

• to co-operate fully and to exercise reasonable flexibility when considering alternative posts and during any guaranteed interview, to ensure where possible that they secure substantive employment, prior to the expiry of

their placement on the alternative employment scheme date. • contact their alternative employment team, should they wish to consider

attending a training course, to enable them to update their skills and / or

knowledge or to re-train for work of a different type or in a different discipline / field;

• complete the application process in respect of an identified suitable

alternative post and when they have been short listed to attend the

guaranteed interview; • approach their manager to request reasonable time off work to find suitable

alternative employment, including attendance at interviews and training

events; and • meet with the NHS Organisation’s senior management / executive

alternative employment lead should the alternative employment manager believe that they have unreasonably refused an offer of suitable alternative employment.

All members of staff on the alternative employment register will be entitled to

be accompanied by a trade union representative or a work colleague, if they so wish during any alternative employment related meetings.

6. INTERVIEW AND APPOINTMENT PROCESS 6.1 Process for Identifying Suitable Alternative Employment

Vacancies The person specification and job description for a post will be the principle

documents used as the means, by which the alternative employment team and

48

the member of staff on the alternative employment register, will identify and

determine suitable alternative posts.

To be eligible for short listing and a guaranteed interview, the member of staff

must be able to demonstrate via their application that they meet all of the

essential person specification criteria for the post.

A member of staff will not have a right to more than one offer of suitable

alternative employment, unless it can be established that the offer did not in fact provide them with a suitable alternative post.

6.2 Identified Appropriate Suitable Alternative Employment Vacancies Where a post has been identified as a suitable post for a member of staff

registered on the NHS Reform Programme Alternative Employment Scheme, the

alternative employment team must advise the appointing manager that they

are required to consider this application, prior to the commencement of any open competition recruitment process.

6.2 Short Listing / Guaranteed Interview Process

Where it has been identified and agreed that a member of staff on the

alternative employment register is able to demonstrate, via their written application that they meet the essential selection criteria for a suitable

alternative post vacancy, they are required to submit a written application, in

accordance with the defined recruitment process.

Where such a member of staff meets the essential short listing criteria for the

post, the appointing manager must guarantee them a formal interview for the

post, before consideration is given to opening up the recruitment process.

Where a member of staff has been identified as suitable for a post and they can

demonstrate that they meet the essential selection criteria but they are not short listed for a ‘guaranteed interview’, the appointing manager will be

required to provide written objective reasons to the alternative employment

manager, copied to the organisation’s senior management alternative

employment lead. The purpose of this written documentation will be to confirm the reason(s) for their decision, based on their deliberations against the post’s

essential person specification criteria and the job description.

In such circumstances the appointing manager may not proceed to advertise

the post, via a process of open competition, until they have met with the senior management / executive alternative employment lead (depending on the

seniority of the post). The purpose of this meeting will be to discuss the

decision, explore concerns and where possible reach a final conclusion, regarding whether the post offered the member of staff suitable alternative

employment.

Should it be concluded that the appointing manager can objectively justify not short listing the member of staff, the senior management / executive alternative employment lead will contact the alternative employment manager,

advising them to contact and formally write to the internal Recruitment Manager or where appropriate their Relocation Manager counter-part in the

external appointing NHS organisation. The purpose of this communication will

be to confirm that the appointing manager may advertise the post via a process of open competition, should there be no other eligible members of staff on the

various local alternative employment registers.

49

6.3 Appointment to the Post Should a panel recommend that a ‘guaranteed interview’ candidate is

appointable following a selection interview process, they should follow their

local appointment procedure.

The appointing manager will be required to inform the relevant alternative

employment manager of the interview outcome, the associated terms and conditions of service and where applicable the agreed commencement date.

It will be the responsibility of the relevant alternative employment manager to

ensure that the member of staff’s details are updated on the local NHS Reform Programme Alternative Employment Database and their file closed.

6.4 Not Recommended for Appointment to the Post

Should a panel recommend that a ‘guaranteed interview’ candidate is not

appointable following a selection interview they should not inform the candidate

of the outcome until they have discussed their decision with the member of staff’s senior management / executive alternative employment lead (depending

on the seniority of the post). Initial contact regarding this matter, should be

made via the member of staff’s alternative employment manager.

Prior to contacting the alternative employment manager, the appointing manager should ensure that the panel fully documents the objective and

constructive reasons, against the post’s person specification and job

description, which explain why the member of staff was unsuccessful.

This information will be used for two purposes:

a) to aid the discussion between the appointing manager and the senior management / executive alternative employment lead (depending on the seniority of the post); and

b) to enable the alternative employment manager / team to provide

constructive feedback to the unsuccessful member of staff.

The purpose of the meeting between the appointing manager and the senior

management / executive alternative employment lead (depending on the

seniority of the post), will be to discuss the decision, explore concerns and were

possible reach a conclusion, regarding whether the member of staff is appointable to the post.

Depending on the reasons given not to appoint the member of staff, the appointing officer may be asked to consider offering the member of staff a

minimum four week trial period, in accordance with the statutory provisions set out in the Employment Rights Act (1996), to provide them with training and adaptation time in the new post.

Should the appointing officer agree to allow the member of staff to take up the

post on a trial period, they must be advised during this meeting that they would be required to confirm the member of staff’s appointment as permanent at the

end of this agreed period, should the trial prove successful. They should also

be advised that should a trial prove unsuccessful due to practical and reasonable reasons the member of staff would return, where practicable to their

previous position. Where a return to their previous post is not possible, the member of staff’s former manager will allocate them meaningful work to

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undertake, in accordance with the provisions set out in Section 8 of this

Scheme.

Should it be concluded that the appointing manager made the correct decision

not to appoint the member of staff and it would not be appropriate in the

circumstances to offer a trial period, the senior management / executive alternative employment lead will inform the alternative employment manager,

advising them to contact the internal recruitment manager, or where

appropriate their alternative employment manager counter-part in the external appointing NHS organisation. The purpose of this contact will be to confirm

that the appointing manager may advertise the post via a process of open

competition, should there be no other appointable alternative employment candidates.

6.5 Trial Period

In accordance with the member of staff’s statutory rights, as set out in the Employment Rights Act (1996) redundancy provisions, they are entitled to a

four week trial period, to provide them with some time to decide whether they

consider the new post to be suitable. A trial period may also be used where the suitability of the post is disputed or unclear to either the employer or the

member of staff. A longer trial period may be agreed by the appointing officer and the member of staff, in limited circumstances, for example to provide

training or re-training.

Where a trial period is agreed, the appointing officer and the member of staff

should establish in writing, the agreed duration of the trial and how both parties

will assess the suitability of the post during and / or at the end of this period.

At the end of the trial period it is the responsibility of the appointing officer to inform the member of staff, their manager and the relevant alternative

employment manager, whether or not the appointment to the post has been regarded as successful.

Where the appointment is deemed not to have been successful at the end of the agreed trial period, the written objective reason(s) must be provided to the

relevant alternative employment manager.

Where the manager concludes that the trial appointment has been unsuccessful and the member of staff is not suitable for the post, they will be responsible for

putting the reason(s) in writing to the member of staff, copied to the relevant

alternative employment manager.

Where the member of staff concludes that the trial appointment has been unsuccessful and they are not suitable for the post, they will be responsible for putting the reason(s) in writing to the appointing manager and the relevant

alternative employment manager.

The written reasons will be reviewed by the alternative employment manager and discussed with the senior management / executive alternative employment

lead (depending on the seniority of the post), to determine what follow up

action is required.

Where the senior management / executive alternative employment lead believes that an offer of suitable alternative employment has been unreasonably refused, a formal meeting will be held with the member of staff

and their representative (where applicable). The purpose of this meeting will

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be fully explore and discuss the written reasons given for the refusal at the end

of the trial period and to establish whether the reasons are valid and reasonable in the circumstances.

Where it is established that a member of staff registered on the Alternative

Employment Scheme has unreasonably refused an offer of suitable alternative employment, following a trial period, their entitlement to a redundancy

payment will be forfeited and the employer reserves the right to proceed to

terminate their employment.

Where it is established that a member of staff registered on the Alternative

Employment Scheme has reasonably refused an offer of suitable alternative employment, following a trial period, they will be required to continue to seek

suitable alternative employment via this Scheme.

6.6 Refusal of a Suitable Alternative Employment Post Where the senior management / executive alternative employment lead

believes that an offer of suitable alternative employment has been

unreasonably refused, a formal meeting will be held with the member of staff. The member of staff will have the right to be accompanied by a trade union

representative or a work colleague. The purpose of this meeting will be fully explore and discuss the reasons for the refusal and to establish whether the

reasons are valid and reasonable in the circumstances.

Where it is established that the member of staff registered on the NHS Reform

Programme Alternative Employment Scheme has unreasonably refused an offer

of suitable alternative employment and they have exhausted the Grievance

Policy, set out in Appendix 2 of the Organisational Change Policy, their entitlement to a redundancy payment will be forfeited and their employing organisation may reserve the right to proceed to terminate their contract of

employment.

Where it has been fully concluded, following the grievance process that a

member of staff registered on the NHS Reform Programme Alternative Employment Scheme has unreasonably refused an offer of suitable alternative

employment, this information will be recorded on the NHS Reform Programme

Alternative Employment Database and their file will be closed.

Where it is established that a member of staff registered on the NHS Reform

Programme Alternative Employment Scheme has reasonably refused an offer of

suitable alternative employment, following a trial period or a grievance process, they will be required to continue to seek suitable alternative employment via

the Scheme.

6.7 Failure to Secure a Suitable Alterative Employment Post

If at the end of the 12 month NHS Reform Programme Alternative Employment

Scheme period a member of staff has not secured a permanent suitable

alternative post, as a last resort the employing organisation may need to consider terminating the member of staff’s contract of employment, in

accordance with the provision set out in the Employment Rights Act (1996),

Section 16 of the NHS Agenda for Change Terms and Conditions of Service Handbook and their contract of employment.

6.8 General Advertised Posts

If the member of staff on the NHS Reform Programme Alternative Employment

Scheme does not meet the specified essential criteria and the vacancy is not

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considered to provide a suitable alternative employment opportunity, these

posts will be advertised via the open competition process. In these circumstances members of staff on the alternative employment register may

apply for the post in accordance with the relevant recruitment and selection

policy and as such they will be considered for the post, in competition with

other applicants.

Where a member of staff on the register secures a post via a process of open

competition, they are required to advise their local alternative employment manager as soon as practicably possible, to ensure that their details on the

alternative employment database are updated and their file closed.

7. ALLOCATION TO MEANINGFUL EMPLOYMENT Wherever possible, members of staff who have been ‘displaced’ and / or

identified as being ‘at risk’ of redundancy will remain in their original post, and

continue to report to the appropriate manager. Where it is not possible for a member of staff to remain in their original post and they cannot be immediately

redeployed to a suitable permanent post, their manager in conjunction with the

Head of Department / Function will find and allocate the member of staff, meaningful, interim work

In such cases, the member of staff is expected, through discussion and

agreement with their Head of Department / Function, to be flexible regarding

the type and nature of work that they are allocated to undertake, to ensure that the organisation can provide continuity of service and meet its operational

needs during the period of organisational change.

In any such discussions, the member of staff would be offered reasonable interim work, which was commensurate with their current grade / pay band and one which would best utilise their knowledge, skills, experience and expertise.

The member of staff’s personal circumstances and commitments outside of work would also be taken into consideration, during any such discussions.

The member or staff would be entitled to be accompanied by a trade union or work colleague, should they so wish during any meetings to discuss this matter.

8. PAY PROTECTION Where a member of staff accepts a suitable alternative post, which attracts a lower salary, their pay will be protected in accordance with the ‘Arrangements

for Salary Protection’, set out in Section 11 of the Organisational Change Policy.

9. GRIEVANCE AND RIGHT OF APPEAL

Where a member of staff has a grievance, in respect of the NHS Reform Programme Alternative Employment Scheme, the application of this guidance or the management of their case, they may lodge a grievance in accordance with

the provisions set out in Appendix 2 of the Organisational Change Policy.

Should a member of staff raise a grievance which is not entirely within the control of their NHS organisation (for example; failure of an external NHS

Organisation to give an eligible ‘displaced’ or at risk of redundancy member of staff a ‘guaranteed), their organisation should treat the matter in the same way as any other internal grievance.

In such circumstances the employing organisation will be required to make the third party organisation aware of the grievance and their need to fully engage,

participate and contribute to the investigation process. Where appropriate the

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organisation will also inform the third party organisation of their obligation to be

involved in the implementation of any agreed resolution, decision or recommendations. Once this process has been exhausted the member of staff

will have no further recourse to their organisation’s local grievance policy and

procedure.

10. MONITORING AND REVIEW

This Policy will come into effect on the 1st October 2009 and will be used solely

for the purpose of managing members of staff who are ‘displaced’ and/or ‘at risk’ of redundancy, during the implementation of the NHS Reform Programme.

The Welsh Assembly Government in conjunction with NHS organisations across Wales will regularly monitor and review the effectiveness and any issues of

concern, regarding the implementation of this Policy of the local management

of the NHS Reform Programme Alternative Employment Scheme.

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