The following article has been written by Dr John Middleton, Vice President for Policy for the UK Faculty of Public Health. It has been written in response to many members’ requests for information and support when confronted with organisational changes following their transfer into local authorities. The views expressed are those of Dr Middleton and as he says in the article, the comment cannot be taken as legally watertight. FPH will not be held legally responsible for any matters arising from individuals or organisations acting on points made in this article. Many authorities may take a different view or have received different legal opinion. There is no substitute for our members being directly advised by a recognised trade union and through them, accessing expert legal opinion. FPH will not be held legally responsible for any matters arising from individuals or organisations acting on points made in this article.Some members have found this article helpful and for this reason we are now publishing it on FPH’s blog, as a companion piece to the Job Evaluation advice produced by the Public Health Medical Consultative Committee.
Public health reorganisation: employment issues observations from a former DPH on moving and reorganizing staff in a local authority. A growing number of councils are now seeking to change their public health staff that transferred from the NHS on to council terms and conditions of service (TCS). FPH is increasingly receiving concerns from our members about this. The questions tend to come in my direction because of my experiences reorganising public health in Sandwell before I retired in March 2014. I have finally managed to put this down on paper. Hopefully this will be of help to people in this painful and difficult predicament. They are my thoughts and views and not necessarily legally correct. So there is no substitute for getting your own advice and making sure you and all your staff are members of appropriate trade unions who can represent you.
What is the real legal position of public health staff following their transfer from PCTs to local authorities? There are a number of terms which feature in the law, in the status of public health staff in local authorities and in the change of employment and reorganisation processes. Among these provisions and terms are:
1. TUPE – the Transfer of Undertakings (Protection of Employment) regulations 2006. If an undertaking transfers from one employer to another, public or private, the new employer is obliged to honour the TCS of the staff who transfer with it, for as long as the staff are doing the same job.
2. Transfer order – the formal letter to local authorities from the Department of Health, on behalf of the Secretary of State, notifying them of the public health duties were described as a ‘transfer order’. It only guaranteed protection for NHS TCS until April 2015.
3. Equal value – Councils are exercised by the case law around equal value. The most well known is the case won by Birmingham city council cleaners (mainly women) that their work should be regarded as of equal value to refuse collectors (mainly men). Councils fear that other groups of their staff will bring forward claims of equal value to those of transferring public health staff and make legal claims to be put on the same value terms and conditions. Strictly speaking they could only do this if they are in the protected characteristics under the Equality Act – e.g. female or of an ethnic minority. Some councils will say it is difficult to predict where the claims might emanate from. It could be suggested that as public health is a more female oriented workforce with a higher proportion of BME workers, such claims might be less likely to succeed. Within the Equal Value considerations there is the term: a good material defence. The fact that there is a quasi-legal transfer order telling councils to take on public health staff on NHS terms provides in legal terms a ‘good material defence’ against equal value claims. But the power of this defence diminishes over time, the argument being that councils should take steps to promote equality in workforce terms and conditions. Where they know there are differences, they should take steps to eliminate these. Those equal value claims therefore could start to appear shortly after April 2015. In the case of Sandwell Council, they were quite clear that by April 2015, they wished to have this risk eliminated. The reorganisation was planned to be in place by the end of March 2014, with staff on protected TCS for a year, until April 2015. In practice there was slippage in the consultation period by 2 months, but the reorganisation went through.
A TUPE transfer or a TUPE like transfer? The Transfer Order has been described as ‘TUPE-like transfer’. The BMA (and Unite the Union) take the view that whatever the legal niceties are about the transfer order, it is a TUPE transfer. As long as staff are doing the job they were doing in the NHS TUPE applies to them, indefinitely. The other important consideration stressed by the BMA is that it is the transfer of a health service to local authorities. The same functions that were the responsibility of primary care trusts in the National Health Service are now local authority responsibilities. It is not the transfer of a public administration function, which councils can claim they can deliver in any way they choose. This could be of crucial importance should unions representing public health staff comes together to mount a legal challenge for TUPE rights to be preserved. Even under TUPE councils do have the right to make changes to TCS. But to be able to do so they must be able to demonstrate they have and economic, technical or organisational (‘ETO’) reason for doing so. It can be all or one of these:
- ‘Economic’ might be to make savings, but is difficult to justify given that sufficient budgets should have come over to cover existing staff through the ring fenced budget.
- ‘Technical’ might apply if someone says the department needs more of one kind of professional expertise and less of another.
- ‘Organisational’ might be changes under economic and technical or might apply if there were other council structural changes.
Consulting on reorganising If a council has an ETO justification, they have to present a new organisational structure, new job descriptions and personal specifications, have undertaken job evaluation under the NJC or Hay systems and consult staff informally and formally. Formal consultation ideally is 90 days; they can do it in 30 and pragmatically in a small department it might be 45 days, but that is not sound practice.
During the consultation all staff are placed at risk. There has to be a challenge period within the consultation in which staff has the right to present their evidence that shows that a job in the new structure is what they are doing. If they can show they are doing 70% of the new role (as a rule of thumb) it is likely to be their job and if they win their challenge they are no longer at risk and stay in the new structure on their NHS TCS. But if they are no longer at risk they cannot then apply for posts, which might be more favourable in the new structure (until all internal appointment processes have been exhausted and the posts are advertised externally).
For some very senior staff particularly it may be very difficult for a council to say they are not doing the same job. A council cannot simply overnight tell you are on council TCS, unless they are willing to risk unfair dismissal or constructive dismissal claims. One unpleasant side effect of all this is the complete demoralisation of staff who have been doing a competent job. In the consultation document, they will have seen that their posts have been deleted. They are at risk. At the end of consultation they have to apply for their new jobs, unless their challenge has been successful.
Some staff may be so dispirited they want redundancy. Again, rules of thumb are that if a post represents a 15% cut in salary it is not the same post and therefore is a redundancy discussion. To be successful in redundancy staff will also want to show the post does represent less than 70% of their old job. They may request redundancy simply to ensure they go out on NHS redundancy terms.
Other staff may make a personal judgment to take a new job, knowing they have a year’s protected salary but knowing they are not going to stick around to see it gone and looking for external posts under NHS continuity of service – PHE, CCG or increasingly, NHS England. All of these choices are painful, processes are often ugly, dilemmas and contradictions emerge, for staff and managers.
All staff has to treat each stage as a serious application for the new positions. For managers this can be difficult when you know what your members of staff are capable of but they don’t show it at internal interview. There is no obligation on the employer simply to take the at-risk people into vacant posts, or to put people into posts where they are the sole candidate. At the end of the first wave internal recruitment, any remaining vacancies have to be advertised internally, to at risk staff within the council. If there are still vacancies after this then they can go to external advert. At this point internal public health staff can have a crack at jobs that look better than the one they have taken or which they won their challenge on.
For some junior staff the reorganisation may present better opportunities – for example admin and clerical staff may have some more favourable TCS from the council, for example, more holiday. For posts below A&C 7 there may be less damage to the member of staff. AFC grades over 7 have more extended pay bandings than NJC grades so a change of terms and conditions is likely to become more detrimental. For AFC 8b upwards, staff really start to lose out. In Sandwell, the highest NJC grade J was a maximum of 49k compared to 56k for top of AFC 8B. 8C staff could only be protected if they can be moved to Hay grades. (In Sandwell, £54-67K in 2013-14.
The lessons of all this are: – You did transfer under TUPE. – So far, unions have not taken forward serious legal challenge on this. – Your council can change your terms and conditions if they change your job, but they cannot do so without an economic, technical or organisation (ETO) reason on which they must consult you. There must be a new structure, new evaluated job descriptions and personal specifications, and an opportunity to challenge. – For your own protection, for God’s sake join a union. If your representative isn’t sufficiently familiar with the work we do, ask for another representative and if necessary, a regional rep. – Your council cannot just send you a letter with altered TCS and altered salary.
Job evaluation I have also been asked to share what I know about council job evaluation schemes. It is a dark art and an esoteric operation. Hay grading seems particularly shrouded in secrecy, pay walls and heavy copyright enforcement. Which is all utterly contrary to transparency in the public sector and needs to be blown open using the Freedom of Information Act.
National Joint Council oversees all employer trade union negotiations. NJC TCS cover most council staff in grades from A to J. The level of pay against these grades in Sandwell in 2013-14 was 16k-49k maximum point in J. / Hay grades 54k- 67k tend to be used for senior managers below director. It is of note that NJC is not recognised by about 40 councils so it is as well to check what your own council’s position is on this. Job evaluations comprise 13 job factors as shown in the table from the NJC handbook, THE GREEN BOOK, Page 136 PART 4.1, APPENDIX.
The job factors are assessed by job evaluators against job descriptions and personal specifications but the ‘Gauge’ questionnaire is a precise route of questions in a handbook, and the course of answering them eventually arrives at a final one beyond which the assessment of the factor goes no higher. This is called the ‘job trace’. Councils protect their job evaluators to do this work. They try to ensure their impartiality and cushion them from the influence of managers who want to big up their staff, from trade unions and staff themselves. But it is not a precise art and it is helpful for directors of public health and managers to know something about the process of job evaluation, to understand how local interpretation of job factors is done (and yes, to get new staff in at the highest possible council grades).
Hay Grading is an extremely clandestine process, there are few licensed/approved evaluators operating from Local Government Employers at regional level and in some councils. The software and even the policy and processes are jealously guarded intellectual property, behind a pay wall.
Contrary to popular perception, job evaluation in councils is not stacked towards holding big budgets and managing lots of staff. In the NJC Green Book, The Knowledge factor scores up to 163 points, double the highest score for financial business. Initiative and Influencing also scores over 100 and demonstrating influencing work beyond the council also scores highly. You must get your council to formally recognise that public health is a whole service area. This carries a specific meaning for the job evaluators. It is generally agreed in the joint staff committee but the chief executive can decide it.
I had always taken for granted that public health was a ‘whole service area’ because of the wide range of council activities we are involved with and influence. However, it carries a very specific meaning in job evaluation and job evaluators will not be able to answer key questions in the job trace favourably if PH is not seen as a whole service area.
The joint British Medical Association and Faculty of Public Health guidance on job evaluation for public health specialists seeks to dig into these issues in more depth. However, it is a world in which there is much secrecy, much that is esoteric, and much that is hidden. It is as well to get alongside your human resources colleagues and try to understand just how the process works in your local authority. Don’t let it just happen to you or your department. Even if the outcome is not what you want, it is necessary to challenge, to try to understand and to persuade and try to get the best outcome for you, your colleagues, for the council and for the people we serve.