By now the changes being wrought by the review of public administration are well underway. As of the 1st April 2007 18 distinct Trusts ranging from the Altnagelvin Hospitals Health & Social Services Trust to the United Hospitals Health & Social Services Trust ceased to exist. In their place five “Super Trusts” came in to existence. On the transfer date those Super Trusts acquired the property, rights and liabilities of the former Trusts. Furthermore, on that date any person who, immediately before the transfer date was employed by any of the old Trusts, in accordance with the scheme made by the Department, the contract of employment between that person and any of the old Trusts is deemed to have effect from the transfer date as if originally made between him or her and the Super Trust.
The review of public administration was launched by the Executive in June 2002. The reform of the Health Services now underway represents a first tangible manifestation of that review.
It is not my intention, in the course of this presentation, to analyse the reasons for the review or the philosophy which underpins it, rather, my brief in this talk is to provide practical advice to you in relation to safeguarding your interests as employees. The documentation published by the Government in association with this matter, the Government has given a commitment to protect staff interest. Furthermore, in the information published by the Government, it states that employers have placed a high priority and are engaged with Trade Unions on a number of levels. Additionally the Public Service Commission was established on the 8th March 2006. The Public Service Commission seeks to make recommendations to the Government on the guiding principles and steps necessary to safeguard the interest of staff and to ensure their smooth transfer to new organisations established as a consequence of the Government decisions on the review of public administration, taking in to account statutory obligations including those arising from section 75 of the Northern Ireland Act 1998.
In simple terms, Government represents that staff will transfer with their work to the new employer with their pay and terms and conditions. The Government has advised that it considers that the transfer in this case falls under the definition of a “relevant transfer” for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006.
The Transfer of Undertakings (Protection of Employment) Regulations 2006 is the main piece of legislation governing the transfer of an undertaking, or part thereof, to another. The regulations are designed to protect the rights of employees in a transfer situation enabling them to enjoy the same terms and conditions, with continuity of employment, as formerly. TUPE protection is not subject to any specific time limit. In addition TUPE places significant constraints on the variation of terms and conditions at a later stage. Please note however that the TUPE regulations do not actually prohibit variation of terms and conditions of employment after transfer. Terms and conditions may be amended for economic, technical or organisational reasons and it is the writer’s personal view the amendment of terms and conditions of employment will take place for these reasons in due course. For example, even if you maintain your same level of salary and your same responsibilities, it may be possible that the location where you perform your work will be changed. There is no doubt that your employer will seek to justify same with reference to the “ETO”. If the employer can make out an “ETO”, then you have no particular redress against your employer in relation to the amendment.
It is important to note that the TUPE regulations do nothing to protect occupational pensions. I note however that the Government has given a commitment to protect staff rights in respect of pensions. The Government gave a commitment to recognise these rights in legislation and the transfer orders include provision that a scheme made by the department, under the legislation, will include provision securing pension protection for all employees. The legislation goes on to explain that “pension protection” is secured for a transferring employee if after that change in his employer he has, as an employee of the Trust, rights to acquire pension benefits and those rights are the same as/or (taken as a whole) not less favourable than those he had as an employee of the old Trust.
A final point arises in respect of TUPE. It should be noted that there is a doubt on the part of the advisors acting on behalf of the employees, that TUPE actually applies to the transfers in this case. As the Government has asserted that this is so, the tribunal may still refuse jurisdiction to hear the case if it decides that this is not a relevant transfer for the purpose of the legislation. This point is still under consideration and no firm conclusion has yet been made.
I now wish to turn to the issue of the staff transfer scheme and the post transfer amendments which are now taking place.
The Department of Health & Social Services and Public Safety has taken great pains, in the course of this process, to stress to employees concerned that it is proceeding in a fair and reasonable manner. As part of that process, the Department established the HPSS Human Resources Framework. This framework is intended to set out the arrangements which will govern the management of staff and staff issues during implementation of the RPA. As such it forms a document setting out principles and high level statements which will inform decisions made during the course of the process. Now I do not propose, for the purposes of this talk, to examine in detail the contents of the Human Resources Framework for the implementation of the Review of Public Administration. I will comment upon it only insofar as it may affect individual members of staff in the forthcoming weeks and months. The same applies in respect of the Staff Transfer Scheme which was published to cover those staff transferring on the 1st April 2007. The Staff Transfer Scheme guaranteed staff in the Trusts that they would be assigned to an employer at the relevant time of transfer for them as individuals. This has, as far as I am aware, now been achieved. No guarantee however has been given that Trust staff in affected areas will retain their current jobs as the new Trusts restructure their internal arrangements to achieve the effective implementation of RPA. All through this process it has been processed that a balance of vacancy controls, suitable alternative employment, early retirements and voluntary redundancies may be sufficient to avoid the need for any compulsory redundancies. At all times the Department has stressed that every reasonable effort will be made to avoid compulsory redundancies to keep valuable skills and experience in the HPSS, to minimise costs and to provide value for money. We shall have to wait and see whether compulsory redundancies can be avoided.
In terms of the transfer which you have just gone through it is important to note that the new Trust cover your contracts of employment on the 1st April 2007. This obviously did not include staff employed on a temporary basis. The Transfer Order specify that the contract of employment of each employee will have affect from the operational date with the old Trust as if originally made between that employee and the new Trust. The Department describes this as a “betterment of the arrangements in TUPE”. In terms of disputes arsing out of the transfer, it is noted that the Trusts operate an internal grievance procedure which complies with the Employment (NI) Order 2003. Staff have access to these internal arrangements if they have a grievance about the way in which implementation of the RPA affected them. This includes a right to have a representative present. Trusts are obliged to advise staff accessing the internal grievance procedures that they have a right of appeal to an independent third party procedure. They are also required to advise those staff that accessing the independent grievance procedure does not affect their right to lodge a claim. Allowing disputes in respect of pension entitlement should be directed to the Pensions Ombudsman. If any member of staff experiences a material detriment to his or her existing terms and conditions of employment and if they can demonstrate that loss, they will be entitled to payment of compensation. So far, so good. Indeed, from the writer’s perspective, the actual transfer of staff from the previous employer to the present employer has been accomplished without difficulty in the vast majority of cases. This is unsurprising. The actual legal transfer of staff has had no affect other than to amend the identity of the employer. It is what happens now that is of concern to yourselves and to the Royal College of Nursing. I wish I was in a position to tell you precisely what was planned for you however all of the documentation that I have considered in association with the Review of Public Administration to date can be summarised in the following terms “long on principle, short on detail”.
So what of the principle?