Change management policy and procedure

1 Introduction

Rotherham, Doncaster and South Humber NHS Foundation Trust (the trust) actively manages the services it provides to ensure the most effective health care for patients or service users within the resources it holds. The trust recognises that as a result of managing these resources and service requirements, changes may need to be made to its organisational requirements which in turn may affect the workforce.

Changes to organisational requirements may include:

remodelling of services
relocation of services
merging of services
expansion of services
decreasing services
closure of services
competitive tendering of services
outsourcing of services
changes in working practices

All organisational changes will be conducted in accordance with this policy which incorporates best practice and legal requirements and aims to provide a framework to assist managers, employees, and trade unions or professional organisations.

2 Purpose

The purpose of this policy is to set out the trust’s approach to the management of organisational change and the procedures which will be followed when implementing any significant changes.

The principles and procedures support the aim of managing strategic and operational change, which is supportive to employees, maximises the security of employment and ensures the continued delivery of appropriate health care services.

3 Scope

This policy applies to all individuals employed by the trust, including any employees that are seconded out to other organisations and will be applied consistently and equitably to all. This policy does not apply to employees seconded into the trust (this is the responsibility of their substantive employer) or to agency staff, other than in relation to reference 4.6 and 5.3.2. Where organisational change affects employees working in partnership with the trust the relevant organisations will agree a joint approach to the change management process using each organisation’s policies.

4 Responsibilities, accountabilities and duties

4.1 Board of directors

The board of directors will ensure that any organisational change is managed transparently, fairly, and consistently by engaging with trade unions or professional organisations and employees at the earliest opportunity. The board of directors will also ensure that consultation is undertaken with employees and trade unions or professional organisations in line with appropriate legal requirements.

4.2 Managers

Managers are critical to the change management process and will therefore be regularly briefed so that they are in a position to respond to the concerns of employees in their teams. In turn, managers will provide information to employees and trade unions or professional organisations so that they are able to make meaningful contributions to the consultation process. This includes ensuring that copies of any notes taken at both collective and individual meetings are provided to them and their representatives in a timely manner. Managers will also ensure that all affected employees are aware of this policy and how to access it.

4.3 Human resources

The Human Resources team will ensure that managers and employees are supported through any change management process and assist in the identification of possible redeployment opportunities.

Human resources will monitor vacancies through the establishment control process to identify possible posts which may be held for redeployment purposes.

4.4 Trade unions or professional organisations

Trade unions or professional organisations will be expected to advise and represent their members involved in any organisational change, and where possible, work towards achieving a satisfactory outcome for all parties.

4.5 Employees

Employees will be expected to meaningfully engage in the change management process.

4.6 Purchasing department or agency

It is the responsibility of the purchasing department to ensure that the information in relation to the number of agency workers, where they are working and the type of work which they are undertaking is available in a report format as detailed in section 5.3.2.

5 Procedure or implementation

5.1 Definitions

For the purpose of applying the provisions contained in this policy, the following definitions will apply:

5.1.1 Continuous NHS service

Continuous NHS service means full or part time employment with the trust or any previous NHS employer provided there has not been a break of more than one week (Sunday to Saturday) between periods of employment. This reflects the provisions of the Employment Rights Act 1996 and agenda for change handbook (where applicable) on continuous service.

5.1.2 Continuous trust service

Continuous trust service means full or part time employment with Rotherham, Doncaster and South Humber NHS Foundation trust or, for employees who transferred into the organisation in accordance with the Transfer of Undertakings (Protection of Employment) Regulations and or under section 6(1) of the NHS and Community Care Act 1990, the date upon which their employment with the previous employer(s) began, subject to the definition of continuous employment contained in section 210-219 of the Employment Rights Act 1996.

5.1.3 Reckonable service

Reckonable service means continuous NHS service plus any service with a previous NHS employer where there has been a break of 12 months or less. Any period of employment outside the NHS which is relevant to NHS employment may be counted as reckonable service at the Trust’s discretion where judged to be relevant.

The following employment will not count as reckonable service:

employment that has been taken into account for the purposes of a previous redundancy or loss of office payment by an NHS employer
where the employee has previously been given NHS pension benefits any employment that has been taken into account for the purposes of those pension benefits
MARS severance payment (which is offset against any subsequent redundancy payment)

5.1.4 Employees at risk

Employees deemed at risk, means those individuals who are at risk of loss of employment and whose posts are identified as potentially ceasing or duties associated with the post are diminishing or the requirement to carry out the work at a location have ceased or diminished, or are expected to cease or diminish as a result of any organisational change.

5.1.5 Redeployment

Redeployment means the process of finding suitable alternative employment (as defined by sections 138 and 141 or the Employment Rights Act 1996) for employees deemed to be at risk.

5.1.6 Slotting in

Slotting in means the process by which employees at risk are placed into another post in a new staffing or management structure which is similar to their current post.

Slotting in may occur where there is a post at the same band or salary as the individual’s current post (or possibly a lower band or grade, in which case pay protection may apply) or where it remains substantially the same with regard to job content, responsibility, grade, status, and requirements for skills, knowledge and experience.

To establish the comparison of one post to another the following shall apply:

50% or more of the old or existing role is reflected in the new role
the post holder is the only suitable candidate for the post and holds a substantive contract of employment
the minimum qualifications and experience required for the new post are already in place with the present post holder

5.1.7 Ring-fencing

Ring-fencing means the process by which employees deemed to be at risk will be considered for a post in a new staffing or management structure. A post will be ring fenced where it is similar to the post being made redundant and where there is more than one person at risk, or the new structure would result in someone being identified as at risk.

5.1.7.1 Limited competition

Limited competition shall normally apply where either:

the post is clearly new in content and or carries a substantially increased weight of responsibility
more than one employee for the one post who could be regarded as a suitable candidate is available within the ring-fenced area agreed for competition
the direct transfer of an individual employee would involve substantial promotion or demotion

5.1.7.2 Preferential interview

Employees who are identified at risk will be given a preferential interview for any suitable alternative employment where they meet the essential criteria, and such posts will not be advertised externally unless the interview is unsuccessful.

5.1.8 TUPE

TUPE means the Transfer of Undertakings (Protection of Employment) Regulations 2006.

5.2 Change management statement and principles

Organisational change is driven by the business needs of the trust. Change can be triggered either by the external environment or by an internal review of service requirements.

In order to meet changing business needs more effectively, there may be occasions when managers need to implement relatively minor changes.

Reasonable minor changes and adjustments to duties and working practices may be implemented without recourse to the formal procedures in this policy but will require discussions with the Human resources department, staff side chair (who will brief trade union or professional organisation representatives) and reasonable consultation with affected employees. In these situations, employees will be advised of this policy, their right to be consulted on the changes and their rights to representation. Notes from these meetings will be made and provided to employees.

Any situation which may lead to employees being declared at risk or a change in banding or grading will not be deemed to be a minor change.

The trust is responsible for deciding the size and most efficient use of the workforce but in doing so is committed to the following principles for managing organisational change.

the trust will provide information on proposed organisational change to trade unions or professional organisations representatives through the trust staff council
employees will receive notice of any organisational change which may affect them at the earliest opportunity
employees will have the right to be accompanied by a recognised trade union or professional organisation representative or work colleague at meetings to discuss any organisational changes which may affect them
employees will be treated as individuals with regard to their personal and employment circumstances when discussing proposed changes
employees will be supported during any organisational changes including accessing appropriate training

Where requested, recognised trade unions or professional organisation representatives will be provided with a list of all employees potentially affected by the change.

5.3 Consultation

5.3.1 Purpose of consultation

In accordance with legislation and partnership working principles, the trust will ensure that meaningful and appropriate consultation with trade unions or professional organisations and affected employees by the organisational change takes place. The consultation will be carried out within the terms of national and local agreements with the aim, wherever possible, of protecting existing terms and conditions and to avoid compulsory redundancies.

Consultation will take place with a view to reaching agreement on the way forward, although there will be times when organisational change will need to proceed without a consensus being reached on all issues. The timing and extent of consultation will be proportionate to the degree of proposed change, the number of employees affected and the impact on individuals.

The purpose of consultation meetings with trade unions or professional organisations and employees will be:

to receive and, where possible, address any questions on any consultation documentation
to consider any comments or views on any consultation documentation including any alternative proposals and costings (which the trust shall as far as practicable make available) before determining any final decision to proceed

To clarify any change processes and timeframes specific to the proposed organisational change exercise under discussion.

5.3.2 Consultation procedure

A consultation document will be prepared on the proposed organisational change explaining why the change is required and the impact of the changes. This document will be prepared by the service or area of work in conjunction with the human resources department.

The consultation document will include, as appropriate:

the current situation analysis including staffing structure
the reason and rationale for any change
all the options which have been considered
the proposal including staffing structures (both numbers and descriptions) and any location changes
impact on the service
the financial, staffing and workload implications of the proposal
impact on supplementary and ancillary services
the number and bands or grades of employees who may be at risk as a result of the proposal, the total number of employees within that team or unit at the affected level and a description of their roles
the proposed final job descriptions and person specifications which have been through the banding procedure should be included with the trust staff council paper which is sent to trust staff council and will then be shared with the affected employees at the commencement of the consultation period
consideration of any health and safety issues
proposed timescale for consultation and implementation of the proposed change
the way in which employees will be selected for posts within the new structure
any measures to be taken to avoid redundancies including natural wastage, redeployment, or retraining
details of any suitable alternative employment which may exist

If redundancy has not been envisaged in the initial consultation document a further update must be provided to trust staff council to cover the potential redundancy situation, the following elements are required in this case:

if necessary, the selection criteria for redundancy
if necessary, how the dismissals are to be carried out and the period over which the dismissals are to take effect
the method of calculating the amount of redundancy payments
the number of agency workers, where they are working and the type of work which they are doing
details of any alternative severance packages following consultation with human resources
details of how this information will be disseminated to employees
description of the consultation process, including planned meetings, timeframes, how employees and representatives can respond and the deadline

5.3.3 Time periods for consultation

In all cases the trust will provide sufficient time for meaningful consultation with employees and their representatives. In exceptional circumstances where changes need to be made very quickly, trade union or professional organisation representatives will be briefed through the staff side chair as soon as practicable and any verbal information will be followed by written information.

The period of formal consultation will not be deemed to have commenced until all affected employees and their recognised Trade unions or professional organisations have been invited to the first consultation meeting. The consultation will commence on the date of the meeting and employees and trade unions or professional organisation representatives must be provided with reasonable notice of the meeting.

In a collective redundancy scenario, consultation will continue for a period of no less than the statutory time scales as detailed in the Trade Union and Labour Relations (Consolidation) Act 1992 (amendment) order 2013:

where 20 to 99 redundancies are proposed within a 90-day period, consultation will commence at least 30 days before the first redundancy dismissal takes effect
where 100 or more redundancies are proposed within a 90-day period, then consultation will commence at least 45 days before the first redundancy dismissal takes effect

In an individual redundancy scenario, consultation will normally start at least 30 days before any individual notice of redundancy is given. However, consultation may be for a shorter period, if jointly agreed by both parties.

Trade unions or professional organisations and employees may request additional information or an extension of time if this is necessary to enable them to understand and contribute to an informed discussion on the merits of the proposal. Such requests will not unreasonably be refused, and where they cannot be accommodated a reason will be given.

It is not necessary for the parties involved to reach agreement for the consultation to be complete. As long as there has been genuine consultation with a view to reaching agreement, then the trust can end the consultation provided that the above timescales have been adhered to.

5.3.4 Consultation with trade unions or professional organisations

Formal consultation with trade union or professional organisation representatives will commence once the consultation documentation has been finalised, but early discussions with locally accredited representatives are encouraged prior to the finalisation of the consultation paper.

This will take the form of:

ongoing discussions with local accredited representatives
trade union or professional organisation representatives will be invited to a meeting with all affected employees and given reasonable notice to attend

In a redundancy scenario, information will be provided in writing to both local and regional trade union or professional organisation representatives which will include:

the numbers and description of employees who are at risk
the proposed method of selecting employees

A written response to the consultation will be expected from trade union or professional organisations within the consultation period.

During any periods of organisational change, management will ensure that trade union or professional organisation representatives are kept up to date of any changes or developments and will meet with trade unions or professional organisations as appropriate.

5.3.5 Consultation with individual employees

A meeting will be held with all employees affected by the organisational change to announce the proposed change and explain the consultation process which will follow.

Employees who it is anticipated will be absent from work for a prolonged period of time, for example, sickness, maternity, or parental leave during a period of organisational change will be involved in the consultation process in line with this policy and any legislation requirements.

Each employee will be offered the opportunity of at least one individual meeting with an appropriate manager at which they have the right to be accompanied by a trade union or professional organisation representative or work colleague. HR advisory support may also be offered.

At the meeting each employee will be invited to comment and respond to the proposals. It is recognised that employees may require time to respond and may not be able to do so at that particular meeting.

A written record of the individual meeting will be kept and provided to the employee and their trade union or professional organisation representative where applicable. The record will be a note of the main points discussed at the meeting.

Regular updates and frequently asked questions may be circulated to employees throughout the formal consultation period. Throughout this period the affected employees will be encouraged to discuss their concerns and queries with their line manager and trade union or professional organisation representative.

In addition to the individual consultation meetings, employees will be kept informed by management through team meetings, briefings, newsletters as appropriate.

All copies of relevant documentation will be available on the trust’s intranet site during periods of organisational change.

5.3.6 End of consultation

At the end of the consultation period, full consideration will be given to all comments received from the affected employees and their trade unions or professional organisations. A decision will be communicated which will include:

the reason for the decision
an explanation where the management decision is in conflict with the views of the affected employees and or trade unions or professional organisations or where the proposal has changed as a result of the consultation
identification of posts which are the same or substantially the same in the old and new structures
arrangements for filling posts through slotting in or ring-fencing
selection arrangements for posts within the new structure
measures that will be taken to avoid redundancies
arrangements for seeking suitable alternative employment
reference to protection arrangements and how these will apply
support mechanisms available for employees affected by the change including counselling and reasonable time off to seek other employment or undertake training
proposed timescales for each stage of the change process

Where redundancies (voluntary or compulsory) are inevitable the trust will set selection criteria for inclusion in the conclusions to consultation. These criteria will be objective, clearly defined, measurable and non-discriminatory. Advice will be sought from the human resources department on the selection criteria to be used and where possible, agreed with trade unions or professional organisation representatives. The trust reserves the right to withdraw offers of redundancy (voluntary or compulsory) anytime up to the nominated date of leaving if suitable alternative employment is found for the affected employee.

Under normal circumstances, employees will be selected on the basis of their relevant skills, experience, and qualifications to undertake the remaining jobs, as assessed through a formal assessment process. However, there may be occasions where alternative selection criteria are agreed with the trade unions or professional organisations during the consultation process, for example:

conduct and performance (as evidenced through appropriate documentary information)
attendance records (due regard will be given to the causes of absence and the equality impact of use of these criteria)

In considering any measures to avoid redundancies, operational efficiency and service needs must be taken into consideration. If an employee volunteers for redundancy or early retirement, approval of the request will be subject to the needs of the service and the cost implications.

5.4 Support for affected employees

All employees affected by the organisational change will be encouraged to seek the advice and support of their trade union or professional organisation. Support will be provided by the trust and may include:

time to meet with their trade union or professional organisation representative to discuss the change
assistance with stress management and access to employee counselling services
help with preparation for interviews
reasonable time off to seek other employment or undertake training

In a potential redundancy situation, the trust will make early contact with jobcentre plus and the rapid response service to provide further support and guidance to the affected employees.

After the change has taken place, the trust acknowledges that employees may take time to adjust to the change itself. Management will remain available to employees to manage any issues which may arise and support them through the transition.

5.5 Process for filling posts in new or revised structures

There will be a defined process for filling posts identified in a new or revised structure (see appendix A flowchart).

If posts in an existing structure are removed or changed in the new or revised structure in any way, employees in these posts will be deemed at risk.

Any employees deemed at risk will be assessed against any posts in the new or revised structure which will be identified as suitable alternative employment.

Employees who are deemed to be at risk will either be slotted in or be included in ring fencing.

Where there are posts in the new or revised structure that are not filled through the above processes, these will be opened up to other employees at risk in the trust for whom the posts are considered suitable alternative employment.

Where posts remain vacant after this process, employees who are currently on pay protection will be considered for any suitable alternative employment opportunities at the band or hours which they are currently protected at.

Where there are no employees at risk for which the remaining vacant posts are considered suitable alternative employment then the posts will be advertised.

Job descriptions and person specifications will be produced for any new posts. The new posts will be evaluated in accordance with agenda for change or through the royal college for medical posts

Selection criteria for all posts in the new structure must be non-discriminatory, fair, objective, clearly defined and based on the skills and competency requirements of the post.

Employees who are offered posts which are subsequently accepted by the trust and the affected employee will be deemed to have been offered suitable alternative employment by the trust. This will be confirmed in writing. If employees are slotted in or offered a ring-fenced post it will be considered by the trust that the posts offered are suitable alternative employment and hence the consequences of refusing to accept these posts will be seen as refusing suitable alternative employment.

Pregnant employees and those on adoption and maternity leave have certain protections when being consulted on any potential changes to their post in accordance with employment legislation and NHS terms and conditions. This means that the above employees may be offered posts, if they meet the essential criteria before any remaining posts are allocated or ring-fenced for other employees.

5.6 Change of location

If, as a result of accepting another post as an alternative to redundancy, there is a requirement for an employee to change base, then the employee may be reimbursed their extra daily travelling expenses at the NHS reserve rate for a period of 4 years from the date of transfer.

There is no facility for any paid travel time at the start and or end of the working day.

Where an employee is already claiming extra daily travelling expenses linked to a previous organisational change process and where the new organisational change process will result in the employee incurring further travelling expenses, the period of protection will recommence at this point.

5.7 Protection arrangements

Protection of pay provisions may be put in place in order to support employees who, as a result of organisational change, are required to move to a new post or their existing post is changed which would entail a reduction in total earnings subject to certain specific terms and conditions of employment. The protection period allows employees time to evaluate their personal financial circumstances and make necessary adjustments.

Protection of pay applies specifically for a position which is accepted as suitable alternative employment, as it is provided (where appropriate) to allow employees time to evaluate their personal financial circumstances, all the salary elements of the new role will be considered to offset the protection until the combined salary elements would otherwise overtake the protected level of pay.

The protection period commences at the end of the agreed trial period (see section 5.9.3) which is the point at which the post is then accepted as suitable alternative employment.

Employees are still at risk during the trial period. Any applicable period of short, or long-term pay protection will not commence until both the employee and employer accept the trial as having been successful. These arrangements provide for

short term protection as defined in appendix B, for example, unsocial hours enhancements, guaranteed overtime
long term protection of basic pay

The exception being the last two pay points each of in agenda for change pay bands 8C, 8D and 9. As these are annually earned points and therefore not guaranteed, these points will not attract pay protection.

Employees who, following an assessment, are in receipt of an injury allowance payment and are permanently redeployed to a position on lower pay due to a work related injury, illness and or other health related condition will receive pay protection as set out in appendix B.

Pay protection will be paid as mark-time protection which means that the rate of earnings is preserved at the salary level immediately prior to the organisational change, until the new earnings reach the level of the previous earnings or until the term of the protection expires.

Pay protection will apply for the agreed periods as set out in appendix B or until:

the employee is appointed to a post in which the basic pay or salary is equal to or exceeds their protected pay or salary
protection may be terminated if an employee unreasonably refuses a subsequent offer of suitable alternative employment in a comparable post at the previous band or hours or a post where the earnings are comparable to the earnings in the previous post
the basic pay or salary of the post gained at the point of organisational change becomes equal to or exceeds the protected basic pay or salary
the employee voluntarily applies for and is successful in gaining another post with lower basic pay or salary than their existing post. (Not linked to the organisational change)
the employee leaves the employment of the trust or retires, this includes flexible retirement

A change to an individual’s working pattern, effects pay, taking it above the threshold of the protected pay amount.

When an employee is in receipt of pay protection they will retain their previous incremental date (on the revised banding) which was applicable prior to the pay protection period.

When an employee is in receipt of long term pay protection and they apply and are successful with their application for a post, on a temporary basis, fixed term or secondment basis which is at the level of their pay protection or higher than the pay protection, the pay protection period will not be extended in line with the duration of the short-term post. The effective end date of the pay protection remains unchanged.

The continued payment of protection is conditional on the employee undertaking if required and personal circumstances allow ad hoc additional hours, overtime, night duty, unsocial hours, acting up arrangements up to the level undertaken before organisational change.

Any additional hours worked will be reimbursed at the applicable rate for the job and the amount of protected pay reduced accordingly.

5.8 Employees at risk

When changes in staffing levels or skill mix are proposed which will lead to a reduction in the numbers of employees in particular bands or grades or occupational groups, management will identify the positions, individuals or pool of employees who are at risk of redundancy. Employees who are ‘acting up’ into another position will be placed in the pool relating to their substantive post.

The identification of being at risk of redundancy is not a notice of redundancy.

Employees who are deemed to be at risk will be invited to a meeting with their manager and trade union or professional organisation representative or work colleague to:

discuss how the proposed changes affect the individual
explain why the individual is at risk
explore the possibility of redeployment
explain the process of redeployment
explain the arrangements for protection of pay and terms and conditions where applicable
offer support and assistance

The meeting will also allow the employee and their representative to raise any concerns or issues relating to current or future requirements.

The individual being placed at risk will be notified of the timeframes of the at risk period, which as a guide, should be for a 12-week period, unless otherwise agreed by the manager and individual.

Employees who are notified that they are ‘at risk’ will be placed on a register held within the human resources department. The human resources department will keep employees on the register informed of any potential vacancies. At risk employees will be notified of possible suitable alternative employment opportunities either via a letter or email.

Employees at risk will be given prior consideration for posts within the new structure where they meet the selection criteria.

Employees at risk will liaise with the human resources department who will register them with NHS Jobs which will allow the employee to see any jobs which have been restricted to ‘at risk’ employees only, both within the trust and nationally.

5.9 Redundancy

5.9.1 Definition of redundancy

Under the Employment Rights Act 1996, redundancy arises when employees are dismissed because:

the employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was so employed
the employer has ceased, or intends to cease, to carry on the business in the place where the employee was so employed
the requirement of the business for employees to carry out work of a particular kind has ceased or diminished or are expected to cease or diminish
the requirements of the business for the employees to carry out work of a particular kind, in the place where they were so employed, has ceased, or diminished or are expected to cease or diminish

The place of work referred to above should not be confused with the specific site or unit in which an individual works.

The human resources department is responsible for notifying the relevant department in writing via the HRI, advance notification of redundancies form if the trust proposes to make 20 or more employees redundant within a 90-day period, within the terms of the legislation. A copy of the notification form will be sent to the trade union or professional organisation representatives concerned. Advance notification to the relevant department does not bind the trust to make the employees redundant.

5.9.2 Suitable alternative employment

Suitable alternative employment is work within the trust that is on broadly similar terms and conditions and within the same range of skills required as the current employment where the individual meets the essential criteria of the person specification. It may be on any site operated by the trust subject to travel considerations. A post in a different band or specialty may be deemed as suitable alternative employment, following discussion with the individual employee, and taking into account their particular circumstances. Employees who are deemed to be at risk will be given prior consideration for suitable posts in line with their skills, experience, and capabilities and where appropriate will receive protection of pay.

Where there are insufficient numbers of vacant posts within the trust, the human resources department will endeavour to identify suitable redeployment opportunities within the wider NHS and draw these to the attention of the employees. This will be via a letter, an email or directly via NHS Jobs.

Employees are reminded that under agenda for change terms and conditions (section 16) and medical terms and conditions an unreasonable refusal to accept suitable alternative employment offered by the trust or failure to submit an application for a post identified as suitable alternative employment will be deemed to have refused suitable alternative employment and mean that they may not be entitled to a redundancy payment.

A post may be considered as suitable alternative employment if it is banded on the same band as the employee’s current post, or the next higher (subject to appropriate assessment) or lower band (subject to protection arrangements). An employee must meet the essential criteria contained within the person specification for any suitable alternative post

Following identification of potentially suitable posts, individuals deemed to be at risk will be given a copy of the job description or person specification and a suitable deadline in which to register their interest. In some circumstances, for example, annual leave this period may be appropriately extended. During this period the individual may meet with the appropriate manager informally to discuss their interest.

If the individual is offered the position, this will be treated as an offer of suitable employment and a trial period will apply.

If an individual wishes to refuse an offer of suitable alternative employment, they should contact the manager and HR representative in writing, detailing their reasons for the refusal. The reasons will be considered by the trust and the individual will be informed whether their refusal has been accepted or not.

5.9.3 Trial periods and training

A trial period will only apply to employees who have been placed at risk and where a formal offer of suitable alternative employment has been made.

The purpose of a trial period is for both the manager and the individual to assess the suitability of the post.

Where the individual has the potential ability but not the immediate experience to undertake the full duties of the role, they will be provided with appropriate skills development or training. This will be provided when it is reasonable, practical, and cost effective and where the employee demonstrates a willingness to learn and can apply the new skills within an agreed timeframe.

The trial period will normally last 4 weeks but may be extended by mutual agreement where an employee requires additional training and development.

At least one review will be undertaken, 1 week prior to the end of the review period in order to allow both parties to discuss any issues at which the employee’s trade union or professional representative may be present along with a member of the human resources department.

If the trial period is unsuccessful, as determined by the individual and, or the manager concerned, redundancy arrangements will apply as from the date when the original contract of employment will terminate unless there are other known identified roles which may provide suitable alternative employment for the affected employee. Until the end of their notice period employees placed at risk will be considered for other suitable alternative employment if available which will be subject to the same arrangements including a trial period.

5.9.4 Redundancy arrangements

An employee will have their contract of employment terminated on the grounds of redundancy if no suitable alternative employment can be found or if a trial period is unsuccessful.

The terms under which a redundancy payment is payable are summarised below:

to qualify for a redundancy benefit the individual must have:
- a contract of employment with the trust
- at least 2 years’ (104 weeks) continuous service within the NHS
a redundancy payment takes the form of a lump sum, dependent on the employee’s reckonable service at the date of termination
the lump sum is calculated on the basis of one month’s pay for each completed year of reckonable service, subject to a minimum of 2 years’ continuous service and a maximum of 24-year reckonable service (for example, the maximum payable is 24 months)
for employees earning less than £23,000 per year (full time equivalent), the redundancy payment will be calculated using notional full-time annual earnings of £23,000, pro-rated for employees working less than full time
for those earning over £80,000 per year (full time equivalent) the redundancy payment will be calculated using notional full time annual earnings of £80,000, pro-rated for employees working less than full time
no redundancy payment will exceed £160,000 (pro rata)
some employees may be subject to locally agreed contractual arrangements in respect of redundancy which will need to be honoured

The following service will not be counted:

employment that has been taken into account for the purposes of a previous redundancy or loss of office payment by an NHS employer
where the employee has previously been given pension benefits, any employment that has been taken into account for the purposes of those pension benefits
MARS severance payment (which is offset against any subsequent redundancy payment)

Employees will not be entitled to redundancy payments on the grounds of redundancy if they:

are dismissed for reasons of conduct, with or without notice
at the date of the termination of the contract have obtained without a break, or with a break not exceeding four weeks, suitable alternative employment with the trust or other NHS employer
unreasonably refused to accept or apply for suitable alternative employment with the trust or another NHS employer
leave their employment before expiry of notice, except if they are being released early
they are offered a renewal of contract (with the substitution of the new employer for the previous NHS one)
where their employment is transferred to another public service employer who is not an NHS employer

Managers must liaise with the human resources department in order to obtain details of redundancy entitlements and other aspects of the redundancy process. The manager will provide, in writing, the individual and their trade union or professional organisation with the following details:

the number of weeks’ notice due to the individual, in accordance with the contractual or statutory notice period
the effective date of the redundancy, which will also be the last day of service
an expectation that employees take any accrued annual leave during their notice period, unless taking leave has been prevented by the employer for any reason
the amount of redundancy payment that will be paid
what efforts will be made to assist the individual in seeking suitable alternative employment during the notice period, what support is offered during the notice period
that reasonable time off with pay will be given to seek and prepare for alternative work
that early release will normally be given, unless there are compelling service reasons to the contrary, if the individual is successful in obtaining other employment outside the NHS and wishes to take this up during the notice period; the date of early release will then become the revised date of redundancy for the purpose of calculating any entitlement to a redundancy payment

To ensure consistency across the trust, the manager who chairs the meetings or discussions with the employee where redundancy termination is discussed should have the authority to dismiss in accordance with the trust’s scheme of delegation.

5.9.5 Right of appeal

The right of appeal against the decision to dismiss an employee by reason of redundancy should be to a sub-committee to the board of directors within 21 calendar days of the date of the letter confirming the redundancy and the case for the appeal must be outlined in full.

In the event of a complaint about misapplication of the change management policy and procedure in the way that the consultation or redeployment processes have been handled will be dealt with in accordance with the trust’s grievance and dispute policy.

5.10 Transfer of undertakings (protection of employment) regulations (TUPE)

Where it has been agreed that a proposal to transfer services and employees to a different employer meets the requirements under the TUPE regulations, there will be consultation with the trade unions or professional organisations at the earliest opportunity. This should be a minimum of 30 days (unless otherwise agreed) and where 100 or more employees are affected, it should be 45 days when reasonably practicable.

When services are transferred from one organisation to another in line with TUPE, the employees who are assigned to the services which are being transferred will transfer to the new organisation.

The terms and conditions within the transferring employee’s contract of employment (including relevant policies and procedures) will transfer with them and should not be changed as a consequence of the transfer.

Where employees have responsibilities spanning more than one NHS organisation or more than one service, discussions will take place with the individual, their trade union or professional organisation representative and the organisations concerned to determine if their employment should transfer. The options in this situation might be that the individual will transfer to one organisation with an agreement to provide services to the other, or have more than one contract of employment or, in exceptional circumstances, to be declared at risk.

In all of these circumstances, for the purposes of the consultation that will be carried out, the manager will identify the services, posts and individual employees that will transfer or be affected in accordance with the obligations of TUPE and shall write to the individuals affected and the trade unions or professional organisations informing them of the intention that employees will transfer, the implications of the transfer and any measures which will be taken in connection with the transfer.

The manager will then offer one-to-one meetings with individual employees and their trade union or professional organisation representative to discuss the implications of the transfer, measures to be taken in connection with the transfer, answer any concerns or queries. These discussions will be documented and confirmed in writing. Every possible support will be given to employees to understand the reasons for and implications of the transfer and to ensure they have the necessary information with which to prepare themselves.

Formal notice of transfer will be issued as long before the date of the transfer as possible in order to comply with the obligations of TUPE and this policy. The trust will make every effort to give up to a minimum of 45 days’ notice of a transfer, but will endeavour to provide more notice than this, for example, 2 or 3 months’ notice depending on the size and scale of the transfer where possible. Where 45 days’ notice is not possible because, for example, of the timing of external announcements or decisions of approval, a shorter notice period will be provided after consultation with trust staff council.

6 Training implications

6.1 Managers

How often should this be undertaken: On revision of the policy or new appointment or promotion.
Delivery method: Trust communication channels.
Training delivered by whom: HR advisors or line managers.

6.2 Human resources

How often should this be undertaken: On appointment or revision of the policy.
Delivery method: On the job training or mentoring.
Training delivered by whom: HR managers or head of HR.

6.3 Employees

How often should this be undertaken: On appointment or revision of the policy.
Delivery method: Trust communications or line manager.
Training delivered by whom: Line managers.

6.4 Staff side

How often should this be undertaken: On revision of the policy and at policy forum.
Delivery method: Awareness or briefing sessions on the policy.
Training delivered by whom: People and OD directorate.

7 Monitoring arrangements

7.1 Employees placed ‘at risk’ or offered suitable alternative employment

How: Review of the organisational change or trust staff council papers which are presented to trust staff council.
Who by: Head of HR.
Reported to: Trust staff council.
Frequency: Annually.

7.2 Tendering processes with possible TUPE implications

How: Review of the trust staff council or HR and OD papers which are presented to trust Staff council or HR and OD.
Who by: Head of HR.
Reported to: Trust staff council.
Frequency: Annually.

7.3 Redundancies

How: Annual report as part of the HR monitoring discussions at the finance performance and informatics committee (FPIC).
Who by: Head of HR.
Reported to: Trust board finance, performance and informatics committee (FPIC).
Frequency: Annually as required.

8 Equality impact assessment screening

To access the equality impact assessment for this policy, please see the overarching equality impact assessment.

8.1 Privacy, dignity and respect

The NHS Constitution states that all patients should feel that their privacy and dignity are respected while they are in hospital. High Quality Care for All (2008), Lord Darzi’s review of the NHS, identifies the need to organise care around the individual, “not just clinically but in terms of dignity and respect”.

As a consequence the trust is required to articulate its intent to deliver care with privacy and dignity that treats all service users with respect. Therefore, all procedural documents will be considered, if relevant, to reflect the requirement to treat everyone with privacy, dignity and respect, (when appropriate this should also include how same sex accommodation is provided).

8.2 Mental Capacity Act (2005)

Central to any aspect of care delivered to adults and young people aged 16 years or over will be the consideration of the individuals’ capacity to participate in the decision-making process. Consequently, no intervention should be carried out without either the individual’s informed consent, or the powers included in a legal framework, or by order of the court.

Therefore, the trust is required to make sure that all staff working with individuals who use our service are familiar with the provisions within the Mental Capacity Act (2005). For this reason all procedural documents will be considered, if relevant to reflect the provisions of the Mental Capacity Act (2005) to ensure that the rights of individual are protected and they are supported to make their own decisions where possible and that any decisions made on their behalf when they lack capacity are made in their best interests and least restrictive of their rights and freedoms.

8.2.1 How this will be met

All individuals involved in the implementation of this policy should do so in accordance with the guiding principles of the Mental Capacity Act (2005) (section 1).

9 Links to any associated documents

10 References

Employment Rights Act 1996.
Agenda for Change Handbook.
Transfer of Undertakings (Protection of Employment) Regulations 2006.
Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013.
Medical Terms and Conditions of Service.
Fixed-term Employees (Prevention of Less Favourable Treatment) (Amendment) Regulations 2008.
Job Centre Plus.
Job Centre Rapid Response Service (opens in new window).
The Maternity and Parental leave regulations 1999 (opens in new window).

11 Appendices

11.1 Appendix A Flowchart

Has the new or revised structure less posts than the original structure?
Yes or no, are there any posts in the new revised structure which have not changes?
Yes or no, post holders in original structure declared ‘at risk’, is suitable alternative employment available in the new or revised structure?

No, is suitable alternative employment available elsewhere in the trust?
Yes, end process.
No, commence redundancy consultation, end process.

Yes, is there more than one suitable alternative post in the new or revised structure?
Yes or no, is there differentiation in the suitable alternative post or posts of less than 50% or more of original role?

Yes, undertake preferential interview process, end process.

No, is there more than one employee at risk eligible for the post?

Yes, undertake ring fenced competitive process, end process.

No, undertake slotting in process, end process.

11.2 Appendix B Pay protection

Where, as a result of organisational change, an employee is required to transfer to a post defined as suitable alternative employment or a change to a service is planned which will result in a reduction of earnings then pay protection will apply.

Employees are not eligible for pay protection where the change is of their choice or where they are downgraded for other reasons (for example, as the result of disciplinary action).

The continued payment of protection is conditional on the employee undertaking if required, and personal circumstances allow, additional hours, night duty, unsocial hours, acting up arrangements up to the level undertaken before organisational change, for example, an employee who worked 25 hours prior to the organisational change and as a result of the organisational change now works 20 hours and receives pay protection then they may be asked to work up to the hours worked at the point of protection, in this example 25 hours.

Employees who following an assessment are in receipt of the Injury Allowance payment and are permanently redeployed to a position on lower pay due to a work-related injury, illness and or other health related condition due to their injury at work, will receive long term pay protection as set out below.

Specifically for a position which is accepted as suitable alternative employment, as protection is provided (where appropriate) to allow employees time to evaluate their personal financial circumstances, all the salary elements of the new role will be considered to offset the protection until the combined salary elements would otherwise overtake the protected level of pay.

11.2.1 Short term protection

Short term protection will apply in certain circumstances where employees have undertaken conditions of employment as a regular requirement of their previous post, for example, guaranteed overtime or unsocial hours enhancements shift work

11.2.1.1 Continuous service: 1 to 2 years

Period of protection: 2 months.

11.2.1.2 Continuous service: 2 to 3 years

Period of protection: 3 months

11.2.1.3 Continuous service: 3 to 4 years

Period of protection: 4 months

11.2.1.4 Continuous service: 4 to 5 years

Period of protection: 5 months

11.2.1.5 Continuous service: 5 or more years

Period of protection: 6 months

11.2.2 Long term protection

Where employees are required to transfer to alternative employment on a lower band (this should normally be no more than one band or grade lower than their current post) or to reduce their contractual hours long-term protection of their basic salary will apply.

Pay protection will be paid as mark-time protection which means that the rate of earnings is preserved at the salary level immediately prior to the organisational change, without the benefit of any subsequent increments or pay awards, until the new earnings reach the level of the previous earnings or until the term of the protection expires.

Where an employee is subject to a non-voluntary transfer to a lower banded post (as a result of re-organisation or restructuring) the pay protection period will run from the new date of the compulsory change.

The period for which pay will be protected is as follows:

11.2.2.1 Years of continuous NHS service:1 to 5 Years

Period protection: 6 months.

11.2.2.2 Years of continuous NHS service: 6 to 10 Years

Period protection: 12 months.

11.2.2.3 Years of continuous NHS service: Over 10 Years

Period protection: 2 years.

During the period of pay protection the employee’s salary will be frozen, and the employee will ‘mark time ‘as defined in section 5.7 until the period of protection ceases or if the salary of the new pay band overtakes their protected salary during the protection period.

11.2.3 End of period of pay protection

If suitable alternative employment is not found by the end of the period of protection, the employee will be paid at the appropriate rate on the new pay scale.

Document control

Version: 5.
Unique reference number: 235.
Date approved: 18 November 2021.
Approved by: Corporate policy approval group.
Name of originator or author: Senior HR advisor.
Name of responsible individual: Corporate policy panel.
Date issued: 29 November 2021.
Review date: November 2024.
Target audience: All trust employees.

Page last reviewed: December 06, 2024
Next review due: December 06, 2025

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