Organisational Change Pay Protection

General Note

NHS Fife acknowledges and agrees with the importance of regular and timely review of policy/procedure statements and aims to review policies within the timescales set out.

New policies/procedures will be subject to a review date of no more than 1 year from the date of first issue.

Reviewed policies/procedures will have a review date set that is relevant to the content (advised by the author) but will be no longer than 3 years.

If a policy/procedure is past its review date then the content will remain extant until such time as the policy/procedure review is complete and the new version published, or there are national policy or legislative changes.

AGENDA FOR CHANGE (AfC) TERMS AND CONDITIONS BRIEFING

1. BACKGROUND

1.1 As part of the three year Agenda for Change pay deal agreed in 2018, NHS Scotland Employers and Staff Side also agreed to review NHS Scotland’s Organisational Change Pay Protection arrangements and produce a new policy.

1.2 This work has been taken forward, in partnership, by a Working Group created under the aegis of the Scottish Terms and Conditions Committee (STAC).

1.3 The revised policy developed by the Working Group is attached at Annex A. The Working Group has also developed a Q&A in support of the new approach, and this is attached at Annex B.

1.4 These provisions are effective from 1 April 2019 and do not cover any instance of organisational change which took place before that date.

2. PROCESS

2.1 For the purposes of pay protection, organisational change is defined as a management or organisational change which impacts on an individual’s contractual earnings or where the individual is redeployed into a lower banded post. In these circumstances, organisational change protection will apply on a no detriment basis.

3. SCOPE

3.1 This policy applies to all staff employed on Agenda for Change Terms and Conditions of Service and will be applied on a prospective basis.

4. IMPLEMENTATION

4.1 Line Managers, the HR Directorate and Staff Side colleagues should adhere to the key principles detailed within Annex A.

4.2 Application of Organisational Change Pay Protection should also be in conjunction with NHS Fife’s Organisational Change policy.

ANNEX A

POLICY ON ORGANISATIONAL CHANGE PAY PROTECTION FOR AGENDA FOR CHANGE STAFF IN NHS SCOTLAND FROM 1 APRIL 2019

Introduction

For the purposes of pay protection, organisational change is defined as a management or organisational change which impacts on an individual’s contractual earnings or where the individual is redeployed into a lower banded post. In these circumstances, organisational change protection will apply on a no detriment basis.

2. Scope

This policy applies to all staff employed on Agenda for Change Terms and Conditions of Service and will be applied on a prospective basis.

3. Key Principles

The principles described below apply in protection situations:

1. “No detriment” protection means that staff will be no worse off, but not any better off, and they will continue to receive the benefit of annual pay uplifts and increments.
2. Managers must involve HR and the relevant Trades Unions in discussions regarding protection at an early stage.
3. Managers must alert the Payroll Department to the possibility of protection being required in order that they can plan for this.
4. Managers should avoid making temporary changes to working hours and working patterns which, through default, become long term and therefore may result in protection of earnings e.g. overtime working which becomes the norm.
5. Appropriate performance monitoring and assurance arrangements will be locally implemented with reporting through the Area Partnership Forum and nationally via STAC. The Area Partnership Forum may also access STAC for points of clarification and interpretation if necessary.
6. Protection will be applied to that component that changes as a consequence of organisational change i.e. if the change relates to shift patterns, the element of pay that will be protected relates to the shift changes.
7. To ensure consistency and uniformity in calculating the level of earnings to be protected, a reference period of 12 months will be applied. This will be adjusted accordingly for any employee on maternity leave or long term sick leave during the 12 month period, or any other exceptional individual circumstance. Employees moving into protected earnings will receive written confirmation and guidance on how protected earnings will be applied and arrangements for working up to the level of protection.
8. Individuals who, having received these written confirmations, do not wish to work up to the level of protection described may forgo their right to protection of earnings.
9. Employees who unreasonably refuse to work up to the previously agreed level of protection will forgo their right to protection of earnings.
10. Local operational unit level and Board level monitoring of protection i.e. to review the degree to which individuals work up to the level of protection is being explored via the SSTS Team. If a solution is found, reporting on this aspect of protection will also be incorporated into the monitoring arrangements.
11. For employees who require grade protection as a consequence of organisational change, employers need to redeploy into suitable alternative posts as soon as possible, ensuring that staff maintain their skills and competencies. Employees also have an obligation to maintain their skills and competencies. To ensure redeployment is maximised, and operates in line with PIN guidelines, STAC will monitor the situation on a six monthly basis.
12. Employees who unreasonably refuse suitable redeployment into a post at the level of the protected grade will forgo their right to grade protection.
13. If employees secure a promoted post or their post is subsequently re-graded (in the same role) they will be placed on a pay point that takes into account their protected earnings to ensure no detriment. If the protected earnings exceed the top of the new pay scale they will move to the top and the balance of protected earnings will be paid on a mark time basis.

4. Written Confirmation of Protection Arrangements

In order to process protection calculations and confirm these in a timely manner to employees it is proposed that the 12 month reference period should commence
15 months before the change is enacted, e.g. If the change is effective from 1 July 2019, the 12 month reference period would be the period 1 April 2018 to 31 March 2019.

5. Offsetting and Working up

Offsetting will still apply but has to be a payment connected to the reason for the change. Overtime and excess hours will not be offset unless the protection is related to contractual overtime or excess hours.

If an employee is on protection, they can be asked to undertake additional duties connected with the reasons for their original protection up to the level of their protected salary. The following principles will apply:

5.1 For Staff Protected for On-Call Payments (including availability supplements and call outs)

1. If the employee works on-call and the frequency of on-call reduces the employee is protected at the higher frequency of on-call. However the employee can be asked to work up to that higher level if there are gaps to be filled due to increased demand or staff absences. This can be at their own site or another site.
2. If the employee is no longer required to work on-call they will be protected for on-call, however, they may be required to work on-call at another site due to staff absences or increased demand.
3. In accordance with Annex A of NHS Circular PCS(AFC)2015/3, paragraph 8.1, staff will be paid according to the duration of call-out including actual travel time, rounded up to the nearest 15 minutes. The call-out time will be calculated from when the member of staff leaves home (or other agreed base) to when they return home (or other agreed base). In addition paragraph 8.3 also states that “Work undertaken from home, either by telephone or online, will attract payment for work done according to the actual duration of the period of work”.

5.2 Shift Pattern Changes and Change in Hours

i) If the employee works on a shift pattern that changes as a consequence of organisational change and their shift payments are reduced, the employee can be asked to work up to their level of earnings if there are any gaps in the shift due to increased demand or staff absences. Staff would not be expected to work beyond their contracted hours but may be required to work a higher level of unsocial hours (as per their protected salary). However, if staff agree to work beyond their contracted hours they would be paid as per Agenda for Change Terms and Conditions.

ii) In situations where there are significant changes to rota, NHS Boards should try to redeploy staff into posts which reduce the reliance on protection in order to stabilise the employees’ working pattern.

iii) If an employee’s contractual hours of work are reduced they will be entitled to organisational change protection. However, the employee can be asked to work up to their protected / original leave of contractual hours if there is increased demand or staff absences.

iv) If an employee has their contractual overtime stopped or reduced they will be entitled to organisational change protection. However, the employee can be asked to work up to their level of contracted overtime.

5.3 Working on Different Sites

i) Employees on protection can be asked to work at different sites within reason and with reasonable notice.

ii) For staff required to work at another site other than their home base, line managers must ensure that the individuals are competent to work on the different site and have received appropriate induction/orientation training. Staff will be entitled to travel costs as per Agenda for Change terms and conditions of service.

6. Financial Governance

It is proposed that Payroll Departments conduct an annual audit and review of protection payments to ensure proper financial governance of this process and all payments associated with protection. Boards should ensure the annual review process is conducted, and take appropriate management action to ensure financial governance standards are maintained.

ANNEX B

Q&A ON NEW ARRANGEMENTS FOR THE PROTECTION OF EARNINGS

Q1: Who do these new arrangements apply to?

A1: They apply to any employee that requires organisational change pay protection from 1st April 2019. This may be as a consequence of a management or organisational change which has impacted on an individual’s contractual earnings, or where they are redeployed into a lower banded post. There is no retrospective change to the organisational change protection arrangements that were in place for protected employees prior to 1April 2019.

Q2: What am I entitled to?

A2: If an employee requires pay protection they will be entitled to retain the same level of contracted earnings including annual pay uplifts and increments to ensure they suffer no detriment.

Q3: What happens if I am redeployed into a lower banded post?

A3: If you are redeployed into a lower banded post you will still continue to receive your higher banded salary including pay uplifts and increments. However the organisation will continue to seek opportunities to redeploy you into a suitable alternative post at the higher band. Your local Human Resources team will support you through this process. Staff are also entitled to seek representation and guidance from their Staff Side representative.

Q4: How do I maintain my skills, competencies and professional accreditation if I am redeployed into a different post?

A4: Your new manager will ensure that you are provided with the opportunities to allow you to maintain your skills, competencies and professional/clinical accreditation.

Q5: What happens if I refuse a post on redeployment?

A5: The aim is to redeploy employees into a suitable alternative post. However, if you unreasonably refuse suitable redeployment into a post at the band you are protected on, then you will forgo your right to protection.

Q6: What happens if my shift patterns / hours of work / on-call rota changes?

A6: Protection will be applied to that component that changes as a consequence of organisational change e.g. if you are no longer required to undertake on-call, you will continue to receive on-call payments or if you move from nightshift to day shift you will continue to receive your night shift allowance or if your contracted hours of work reduce you will continue to be paid your contracted hours.

Q7: Can I be asked to work up to my level of protected earnings?

A7: Yes, you can be asked to work up to your level of protection in additional duties connected with the reasons for the change. This will be off set against protection payment. However you will not be expected to work more than your contracted hours. The principles for this are described in Section 5 of Annex A.

Q8: How will I know what my protected earnings are?

A8: You will receive written confirmation and guidance on how your protected earnings will be applied and arrangements for working up to your level of protection. The payroll department will use a reference period of twelve months to calculate your protection.

Q9: What happens if I want to apply for a promoted post?

A9: If you secure a promoted post or your redeployed post is subsequently regraded, you will be placed on a pay point that takes into account your protected earnings to ensure no detriment. If the protected earnings exceed the top of the new pay scale you will move to the top and the balance of your protected earnings will be paid on a mark time basis.

Q10: I have submitted a request to have my previous post re-evaluated prior to being redeployed will that affect my level of protection if the re-evaluation results in my grade increasing?

A10: Yes your protection will need to be recalculated to take into account your change in grade.

Q11: What does ‘mark time ‘mean?

A11: Mark time means that element of your pay that is still subject to protection following promotion to a higher level post will not attract any future cost of living increases.

Q12: Can I be asked to work on a different site?

A12: Yes, you can be asked to work at a different site within reason and with reasonable notice. For employees required to work at a different site other than their home base, line managers must ensure that the individuals are competent to work on the different site and have received appropriate training. Employees will be entitled to travel costs as per Agenda for Change terms and conditions. In regard to travel time, if the employee is asked to work at a different site which results in a significantly longer journey time, the employee will be allowed to claim for the additional travel time.

Q13: What arrangements are in place to ensure protection is paid fairly and consistently?

A13: To ensure that all employees are treated fairly and consistently, Area Partnership Forums will be asked to monitor protection arrangements and they will be required to provide reports to STAC. Staff who feel they have not been treated fairly can seek support and advice.

Related Publications

• CoSO 25a - Organisational Change Pay Protection - Additional Statement