Commissioning a patient-led NHS (CPLNHS): PCT reconfiguration
Frequently asked questions for members in public health medicine in England
January 2007
Introduction
The Department of Health in England published CPLNHS in July 2005 which followed on from the NHS Improvement Plan and Creating a Patient-Led NHS. CPLNHS was aimed at changes in the commissioning of services, greater collaboration with local authorities on Choosing Health as well as a commitment to make £250m of savings in costs. In order to achieve this the Department proposed a reconfiguration of NHS structures which where possible would be coterminous with local authorities
In November 2005, trade unions (including the BMA) representing NHS administrative and managerial staff in Strategic Health Authorities (SHAs) and Primary Care Trusts (PCTs) participated in national-level negotiations with NHS Employers and the Department of Health in England on developing a Human Resources (HR) framework for SHAs/PCTs. The framework was published on 1 December 2005 and it set out how the HR changes arising from CPLNHS should be managed and identified the processes SHAs and PCTs were expected to follow to ensure that changes were introduced fairly and comply with good practice.
Reconfigured SHAs were established in shadow form between 1 April and 30 June 2006 and then were fully established from 1 July 2006. The HR framework made reference to the fact that the Department of Health would develop guidance on a national process for public health appointments, including arrangements for ‘pooling’, at SHA and PCT level which would be issued to SHAs. As a result of this, the CPLNHS Director of Public Health (DPH) HR supplement was published in June 2006 for the appointment process of DsPH in PCTs. The supplement was agreed between NHS Employers, the Department of Health and the unions (MiPHealth, FDA and BMA). It related to PCT Level Director of Public Health (DPH) appointments. It stated that other public health posts would be appointed in line with local arrangements and in accordance with the NHS consultant appointment regulations.
Following the establishment of the new SHAs and the merger of the old Regional DPH and SHA DPH posts into ten new RDPH posts, the process of PCT reconfiguration began and in October 2006 was completed. Not all PCTs were reconfigured but the number reduced from 300 to 152. Pools for the DPH posts in the reconfigured PCTs were restricted to competition between PCT DsPH in the new SHA regions and unsuccessful candidates for SHA DPH positions. All DsPH were required to apply for these posts unless they resigned, volunteered for redundancy or opted for another Director post other than public health. There has been a selection process (assessment centre and interview) for the appointment of DsPH and the HR supplement is clear that DsPH who apply will either be appointed to the new reconfigured PCT or if they are unsuccessful they will be guaranteed employment until June 2007.
Below is a list of frequently asked questions about the appointment process and the employment implications for members in public health as a result of PCT reconfiguration.
Members concerned about their individual circumstances should contact askBMA by calling 0870 60 60 828. Non-members who have yet to begin discussions with their employer about their own situation may join the BMA and be eligible for full BMA advice and representation if and when required. Unfortunately, the BMA cannot represent members whose cases pre-date their membership but will be able to provide initial advice on the generic situation.
Q1. What appointment procedure will be followed for the appointment to SHA and PCT Director of Public Health Posts?
BMA answer: The DPH HR supplement states that all DPH posts will be subject to an Advisory Appointments Committee (AAC as they are subject to the NHS (Appointment of Consultants) Regulations 1996. It also states that “Other staff will be appointed in line with locally agreed and managed arrangements, and where appropriate, in accordance with the NHS (Appointment of Consultant) Regulations 1996 and its amendments “. If a DPH is moving to a consultant post agreed as suitable alternative employment then it is the BMA’s view that an AAC would not be necessary as the individual will already have been appointed as a consultant in accordance with the Regulations. In some instances, individuals are also being required to enter an Assessment Centre process for DPH posts. This is not part of the national guidance as such although paragraph 34 of the CPLNHS HR Framework states that there will be a ‘robust assessment and interview process for all senior posts…’
Q2. As a DPH in a reconfigured PCTs am I required to be entered into the DPH pool for assessment?
BMA answer: According to paragraph 28 of the DPH HR Supplement you are required to apply for DsPH posts unless you have resigned, volunteered for redundancy and had the application accepted, opted for an alternative Director pool, opted for the pool below or do not have the required specialist registration. However, see also Question 5 below.
Q3(a). If I am unsuccessful in applying for a DPH post in the SHA DPH pool will I have the right of prior consideration for Director posts for which I am eligible in the new PCT?
BMA answer: According to paragraph 65 of the CPLNHS HR Framework there will be an initial phase of restricted competition for existing substantive directors for the new director level posts i.e. prior consideration would be given to ‘pools’ of substantive postholders. Paragraph 66 gives further guidance regarding the pools including that individuals should have access to a primary pool at the level of their current substantive post or at the tier below
Q3(b) Are the pools for DPH PCT posts restricted to SHA/PCT DsPH?
BMA answer: Paragraph 25 of the DPH HR supplement indicates that the pools are restricted to this group but it appears that the pool could also include other Directors who are on the Specialist Register. Para 22 indicates that those on the Specialist Register in a specialty other than public heath medicine must have equivalent training and/or appropriate experience.
Q4. If I am unsuccessful in applying for a DPH post in the PCT DPH pool should I be eligible to be considered for alternative employment as an associate / deputy / locality lead / consultant?
BMA answer: In principle yes, as this should be in accordance with paragraph 38 of the DPH supplement. It will be advisable to clarify with the PCT the duties of the post, that it will be of equivalence and on the consultant contract.
Q5. What if I don’t want to accept a SHA or PCT post offered to me?
BMA answer: You are free to choose whether to accept a post or not. However, refusal will then potentially result in a dismissal either before or at the end of the relevant guarantee period. On dismissal the employer is likely to argue that you have refused to accept suitable alternative employment and therefore you are not entitled to a redundancy payment [either contractual or statutory]. If you consider the post is not suitable alternative employment you should contact askBMA as soon as possible to receive specific advice on your situation.
Q6. I do not accept that project work offered to me until the end of June 2007 is suitable alternative employment to my current post. Am I therefore able to claim redundancy as a reason for dismissal from my current post?
BMA answer: We would advise that you need to be very cautious in this situation and that you should consult your BMA Regional Centre via AskBMA before taking any action. Paragraph 94 of the CPLNHS HR Framework states that the employee must agree to pursue all reasonable employment opportunities. Paragraph 95 states that when considering whether a post constitutes suitable alternative employment, employees need to consider whether it provides similar earnings, has similar status, is within the member of staff`s capability and does not involve unreasonable additional inconvenience. In order to claim a redundancy payment you would need to be dismissed. Otherwise if you resign you would be claiming constructive unfair dismissal which we would not advise at this stage. You also need to be aware that time-limits apply and so you should consult with the BMA as soon as possible.
Q7. When am I guaranteed a job until?
BMA answer: SHA DsPH are guaranteed employment until the end of March 2007 while for DsPH in PCTs it is the end of June 2007.
Q8 Will I have pay protection?
BMA answer: There is no separate national agreement on this. This is decision of the SHA/PCT which is expected to honour any existing arrangements on pay protection.
Q9. My PCT is unreconfigured as it has exactly the same geographical boundaries. Am I entitled to be TUPE transferred into the Director post in the new organisation which matches my current post?
BMA answer: Yes unless there are no 'economic, technical or organisational reasons' preventing the transfer to the position.
Q10. If my contract transfers how long does such protection last?
BMA answer: You are entitled to transfer on your existing terms and conditions of service which are subject to change in the same way if there had not been a transfer. Changes would be through the national negotiating arrangement between the BMA and the Department of Health.
The Department of Health’s 'employment guarantee' is separate from this as it may apply to people who have been transferred without a post rather than people being transferred in their posts. If you have not transferred across in your current post on current terms or have not accepted suitable alternative employment, then you should seek specific advice via askBMA as soon as possible.
Q11. What might be the circumstances under which I could claim unfair constructive dismissal?
BMA answer: A fundamental breach of contract by the employer provides an entitlement to claim constructive unfair dismissal providing you have at least 1 year’s service. In this context, continuous employment prior to transfer should be able to be aggregated with employment post-transfer. However, successfully claiming constructive dismissal is far from straightforward and time limits apply. Moreover, a successful claim will not necessarily result in an award equivalent to a redundancy payment. N.B. You should not resign and seek to claim constructive unfair dismissal in any circumstances unless you have taken detailed legal advice on your individual position.
Q12. My new employer is based in a different office requiring extra travelling time and mileage. What are my entitlements?
BMA answer: The post at a new location may be deemed to be suitable alternative employment despite the change in location. The consultant contract provides that “You may be required to work at any site within your employing organisation, including new sites“. Individual circumstances must, of course, be taken into account and it may be that these would justify a refusal to accept the position. You will need to seek specific advice before making a decision. Paragraph 20 of the CPLNHS NHS Framework states that:
'These new employers will need to make early decisions about the location of their headquarters and their organisational structures, as this will have a major effect on existing staff. In addition, best practice policies on relocation, excess travel payments and flexible working will be crucial to retaining staff'.
Where location is an issue you should raise it with your employer, specifically asking what arrangements will be made to reflect the additional travelling time and mileage. If you are required to relocate to take up a new appointment you may be able to claim relocation expenses subject to your contract of employment and/or local agreements. If in any doubt you should contact AskBMA for advice.
Q13. I feel my current job may be at risk but have not had any notification from my employer. Do I need to worry?
BMA answer: If you are in any doubt consult your employer, but if you have not received notification that your post is at risk of redundancy you can reasonably assume that it will continue. It is your employer’s responsibility to notify you and consult you if your post is at risk of redundancy.
Q14. If appointed to a DPH post in a reconfigured PCT what pay arrangements will apply?
BMA answer: The Department of Health in its Supplementary Guidance for pay arrangements for DPH posts states:
'It remains appropriate for DsPH appointments to be made on Consultant Contract terms where a medically-qualified candidate is appointed and where his/her duties include duties that can only be performed by virtue of his/her medical qualification. Such additional duties should be consistent with the appointee’s training'.
Q15. Whom should I contact for further advice?
BMA members can contact AskBMA on 0870 60 60 828.
Q16. If a PCT extends the employment guarantee period past 30 June what effect will it have on any subsequent redundancy payment?
There has been no national agreement to extend the guarantee period and so any extension should be by agreement with you. If you feel that such an extension would be in your interest then this should be formally agreed and a new time-period set. One issue that you will have to consider is the impact on any subsequent redundancy compensation payment and pension entitlement.
Under the transitional redundancy arrangements, the pension enhancement is assessed as at 30 September 2006 but reduced in respect of service accrued after that date. Additionally for those who retire after 1 July 2007 any enhancement over 5 years as at 30 September 2006 will further reduce by 1/60th for each calendar month from 30 September 2006 to the date of retirement. The transitional arrangements also provide for an additional redundancy payment but if the pension enhancement exceeds 6 2/3rd years the value of the payment is reduced by 30 per cent for each year of enhancement over 6 2/3rd years.
It is unlikely that there would be a substantial adverse impact arising from such an extension but specific advice should be sought to assess the impact on your situation. An illustrative example is given below. This is based on a doctor who is on the maximum of the consultant scale receiving the maximum public health supplement.
If at 30 September 30 the doctor would have been 50 years of age with 25 years' full-time service and would therefore be entitled at that date to an enhancement of 10 years on redundancy. The figures are as follows:
- On redundancy as at 30 June 2007 the pension and lump sum including enhancement would amount to £49978 pa and £149936 respectively. Calculations have been based on pensionable pay of £114237 as at 30 June 2007 and a reduced enhancement of 9 years 92 days.
- On redundancy as at 30 September 2007 the pension and lump sum including enhancement would amount to £48829 pa and £146488 respectively. Calculations have been based on pensionable pay of £114893 as at 30 September 2007 and a reduced enhancement of 8 years.
BMA response to FAQs published by NHS Employers
NHS Employers has published FAQs on the process some of which the BMA has responded to below. Read the NHSe FAQs here.
Is there a probationary period?
The national guidance does not cover this. This would be for DsPH and employers to agree locally if it was felt a probationary period would be of benefit. Clearly, for those DsPH displaced by this process, who have accepted an offer of suitable alternative employment, as an alternative to redundancy, there would be an opportunity for a trial period as defined by employment legislation.
BMA view: A probationary period should not be necessary. This has no advantage but it is different from a proper induction regarding a new role.
If a displaced DPH (guaranteed employment until March 2007) finds that the role assigned to them in the interim is unsatisfactory, can they leave with redundancy?
This would be for discussion locally, as it would depend on the facts of the case. The duty of the employer is to do all possible to avoid redundancy. This might include asking the employee to undertake 'interim' work whilst the search for permanent suitable alternative employment (SAE) continues. The interim work does not necessarily have to meet the SAE test, but it should be something fitting the capability and experience of the employee.
BMA view: We would say that it is highly questionable as to whether the offer of such an interim post is consistent with the legislation on redundancy . Individuals affected in this way should seek specific advice from the AskBMA before agreeing to such work.
What does 'legitimate claim' mean (paragraph 45)?
In the context of this paragraph, it means that the work content of the individual’s current substantive post overlaps with the new proposed post, to the extent that the individual’s current post will be redundant on the establishment of the new post.
BMA view: The BMA’s view is that depending on the extent to which the new post overlaps with the existing post, there may be issues regarding how far the post has really changed and therefore the extent to which there is a redundancy. This could be the situation in certain unreconfigured PCT, for example. If this is felt to be the case then individuals should seek specific advice from AskBMA.
What happens if the DPH doesn't want to enter the pool? Will they waive redundancy?
Yes, unless they are not in the pool for one of the reasons in paragraph 28 of the PCT DsPH HR framework.
BMA view: This assumes that it will not be legitimate for a DPH to regard any alternative post as unsuitable. This may not be a valid assumption. Individuals who feel that the alternative posts do not constitute suitable alternative employment or that the post being offered is otherwise unreasonable because of their circumstances should seek specific advice from AskBMA. It will be important to set out the reasons why the post is not suitable or otherwise unreasonable as soon as possible.