| Employment Agencies and Deaneries |
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| Sunday, 27 July 2008 | ||||
Employment Agency legislation was designed to protect workseekers from unscrupulous and shady practices. Remedy believe that the protection afforded to junior doctors should be no less than that given to workers in the catering industry. We would stress that the legal position is still unclear. It may take a court case to establish the precise status of Deaneries cis a vis this legislation. In the meantime there is a possibility that new regulations could be imposed by government. Remedy would expect to be consulted prior to such changes being introduced.
RemedyUK 1 Coach House Mews 217 Long Lane London SE1 4PP Executive Summary1. Deaneries are predominantly responsible to Strategic Health Authorities and may have potential conflicts of interest between provision of service and education. 2. Deaneries are responsible for recruitment and function as Employment Agencies. It is likely that they are subject to Employment Agency legislation. 3. If this were so then the implications are that:- a. Better information needs to be provided to applicants regarding the jobs they have applied for. b. Better information should be given to Trusts about the applicants. c. There could be restrictions in Deaneries restricting the number of concurrent applications doctors can make. d. Confidentiality restrictions may prevent Deaneries from having both Educational and Employment roles. It may be necessary to change their corporate structure as a result. 4. We recommend that there is a single contract of employment with a Lead Employer for the duration of a training programme, rather than a series of short-term contracts. What is a Deanery – background informationThe roles and structure of Deaneries were reviewed by Sir Bernard Crump in 2004 . He considered that the principal roles and responsibilities of the Postgraduate Deaneries were:- Managing and delivering postgraduate medical and dental training, including pre-registration doctors and dentists. This represents the vast bulk of the work of deans and their staff and includes, recruitment, assessment, remediation, educator development and the quality assurance of trust and general practice based education; Other roles included leading the implementation of MMC, managing trainee numbers, supporting the implementation of the EWTD and supporting doctors in difficulties. Postgraduate Deans had been employed by a number of different organisations including Universities, the Department of Health and Strategic Health Authorities. Crump recommended that, for the NHS elements of their work, Postgraduate Deans be employed by SHAs and accountable to them. This gives them an inherent potential conflict of interest between service and training. Deaneries had acted as de facto Employment Agencies for Specialist Registrars since the Calman reforms, and this role was expanded under MMC. They have never been employers - the Gold Guide states:- An allocation offer for a training programme following the selection process is not an offer of employment. This can only be made by an employer who will need to ensure that the candidate which has been allocated meets the requirements of employability. ….. If an applicant is selected and offered a placement on a training programme by the Deanery or NES, the employing authority ultimately has the right to refuse employment but it must be able to offer robust reasons for this. (Our emphasis throughout.) Medical Staffing Departments within Trusts issue the contract of employment hold terms and conditions of service and organise payroll (including banding, visa queries, resignation and general terms and conditions of service such as leave). Employment Agencies legislationEmployment Agencies are regulated under Acts including the Employment Agencies Act 1973 and the Conduct of Employment Agencies and Employment Businesses Regulations 2003. For the purposes of this Act “employment agency” means the business (whether or not carried on with a view to profit and whether or not carried on in conjunction with any other business) of providing services (whether by the provision of information or otherwise) for the purpose of finding workers employment with employers or of supplying employers with workers for employment by them. A separate business entity, the ‘Employment Business’ is covered by the same legislation but differs in that it subcontracts workers who are in its employ. It is not clear why Deaneries have not been subject to Employment Agency legislation in the past. One possibility is that in 1973 Deaneries were much closer to Universities. Another possibility is that it was simply overlooked. The EASI have recently stated that Deaneries are very likely to be Employment Agencies. The exact position may need to be decided by the courts. The remainder of this paper considers the implications if Deaneries were covered by this legislation. It is conceivable that in the future the Department for Business, Enterprise and Regulatory Reform may attempt to seek an exemption by means of regulation. RemedyUK would expect to be consulted as an interested party if such changes were considered. Information to be given to Work-SeekersThe Conduct of Employment Agencies and Employment Businesses Regulations (2003) states:- Information to be obtained from a hirer 18 Neither an agency nor an employment business may introduce or supply a work-seeker to a hirer unless the agency or employment business has obtained sufficient information from the hirer to select a suitable work-seeker for the position which the hirer seeks to fill, including the following information - (a) the identity of the hirer and, if applicable, the nature of the hirer's business; (b) the date on which the hirer requires a work-seeker to commence work and the duration, or likely duration, of the work; (c) the position which the hirer seeks to fill, including the type of work a work-seeker in that position would be required to do, the location at which and the hours during which he would be required to work and any risks to health or safety known to the hirer and what steps the hirer has taken to prevent or control such risks; (d) the experience, training, qualifications and any authorisation which the hirer considers are necessary, or which are required by law, or by any professional body, for a work-seeker to possess in order to work in the position; (e) any expenses payable by or to the work-seeker; and (f) in the case of an agency - (i) the minimum rate of remuneration and any other benefits which the hirer would offer to a person in the position which it seeks to fill, and the intervals at which the person would be paid; and (ii) where applicable, the length of notice which a work-seeker in such a position would be required to give, and entitled to receive, to terminate the employment with the hirer. (emphasis added) Section 21 requires that this information is given to the work-seeker by the Employment Agency at the time that the offer is made, or in any event within three business days. Information about place of workOne of the commonest complaints from junior doctors has been that they have been given insufficient information about where they will be working, and that they are given this information too late to make suitable domestic arrangements. Training is presently organised into rotations (or Training Programmes), which typically span multiple hospitals. At the time of recruitment the sequence of these may not be known. There are strong arguments for permitting some flexibility and variance within this to take account of future career progression and the development of sub-specialty interests. It would therefore be disadvantageous to all parties if an over-rigid approach were made mandatory. It would be easier to give accurate information to applicants if the time between appointment and starting the job were as short as possible, since it would be easier for Programme Directors to determine which posts were vacant. Applicants should expect to be given reliable and detailed information about which Trusts/hospitals make up the programme to which they are applying. If a single application covers multiple programmes/rotations then it should be clear which programme(s) are being applied, It should also be made clear how the allocation of successful applications to individual programmes and hospitals will be made. We are especially keen to see that the first hospital at which the doctor will be working is communicated to them within the three-day period. Information about the type of workAnother common complaint has been that junior doctors who expected to work in a given specialty or subspecialty have found themselves working in a different one. For example some programmes for Genitourinary medicine include Infectious Diseases, but others do not. We would like to see clearer information on this given at the time of application and at the time an offer is made. Information about salaries, expenses and other payments Although salaries are set nationally there are some areas where there is individual variation and discretion. We consider applicants should be told in advance:- - The rules governing removals expenses and travelling allowances during the course of the rotation. - The allocation of study-leave time and funding during the course of the rotation, and how this is managed between the posts comprising the rotation. - Regional variations in pay at individual hospitals (eg London weighting) We also consider that applicants should be given information regarding the current salaries/banding for the entire rotation at the time of application, and should also be notified of any future changes that have been planned or are expected. The issues of long-term pay protection are beyond the scope of this document. Periods of notice and termination of employmentAn anomaly exists concerning termination of employment when a doctor wishes to leave a rotation. Although his contract of employment with a given Trust specifies the period of notice (usually one or three months) he may decide to leave in the final months of his contract. This may not coincide with Deanery recruitment dates, resulting in the next Trust where he was due to rotate being left with a hard-to-fill service gaps. This is a problem that needs to be considered further. It could partly be addressed by the introduction of a single contract. Information given to TrustsTrusts should expect to receive references written at the time of recruitments, under the provision of Section 22(2) of the 2003 Act. The requirements are that …the agency or employment business has….obtained two references from persons who are not relatives of the work-seeker and who have agreed that the reference they provide may be disclosed to the hirer, and offered to provide copies thereof to the hirer; In addition Section 20 gives Deaneries the obligation that:- (5) Where an agency, having introduced a work-seeker to a hirer, receives or obtains information, which indicates that the work-seeker is or may be unsuitable for the position in which the work-seeker has been employed with that hirer, it shall inform the hirer of that information without delay. (6) Paragraph (5) shall apply for a period of 3 months from the date of introduction of a work-seeker by an agency to a hirer. Can Deaneries restrict concomitant applications?Under the 2003 Act:- Restriction on detrimental action relating to work-seekers working elsewhere 6. - (1) Neither an agency nor an employment business may (whether by the inclusion of a term in a contract with a relevant work-seeker or otherwise) – (a) subject or threaten to subject a relevant work-seeker to any detriment on the ground that – (i) the relevant work-seeker has terminated or given notice to terminate any contract between the work-seeker and the agency or employment business, or (ii) in the case of an employment business, the relevant work-seeker has taken up or proposes to take up employment with any other person; or (b) require the relevant work-seeker to notify the agency or the employment business, or any person with whom it is connected, of the identity of any future employer of the relevant work-seeker. (emphasis added) It has previously been a requirement that if an applicant applies to more than one Deanery, and one application is successful, then he must withdraw all other outstanding applications. Candidates have been threatened with a referral to the GMC if they disobey. This requirement appears to breach the 2003 regulations. Can Deaneries maintain their Educational/Assessment role?The Conduct of Employment Agencies and Employment Businesses Regulations 2003 requires that:- Restriction on requiring work-seekers to use additional services 5. Neither an agency nor an employment business may make the provision to a work-seeker of work-finding services conditional upon the work-seeker - (a) using other services for which the Act does not prohibit the charging of a fee, or (b) hiring or purchasing goods, whether provided by the agency or the employment business or by any person with whom the agency or employment business is connected. Confidentiality28. - (1) Neither an agency nor an employment business may disclose information relating to a work-seeker, without the prior consent of that work-seeker, except - (a) for the purpose of providing work-finding services to that work-seeker; (b) for the purposes of any legal proceedings (including arbitration); or (c) in the case of a work-seeker who is a member of a professional body, to the professional body of which he is a member. (2) Without prejudice to the generality of paragraph (1), an agency shall not disclose information relating to a work-seeker to any current employer of that work-seeker without that work-seeker's prior consent, which has not by the time of such disclosure been withdrawn, and shall not make the provision of any services to that work-seeker conditional upon such consent being given or not withdrawn. These restrictions appear to explicitly restrict the disclosure of any information regarding the applicants, and would make it difficult for Deaneries to maintain their non-employment agency functions (eg ARCPs ). It is even possible that the corporate status of Deaneries would need to be cleaved in some way so as to satisfy the terms of these restrictions. A formal separation of the training and employment agency functions would make the respective roles more transparent. Should trainees have a single contract of employment?The present employment model provides junior doctors with a series of short-term contracts as they rotate from one employer to the next. This system has been supported by many employers because they feel it gives them some control over who works in their hospital. However there are a number of serious disadvantages to this model. a. Short-term contracts are disadvantageous and make it hard when postholders apply for mortgages or credit. b. Specific problems arise regarding OOPEs or time abroad, including pension contributions. c. Other problems arise around maternity leave, especially if this spans two or more hospital rotations, or if a trainee has only been in a given hospital for a short period before her maternity leave starts. d. There are difficulties with prolonged or chronic sick leave. e. Employer-employee disputes and disciplinary matters are harder to solve when there are multiple employers. f. Errors can be made with tax codes and seniority levels when trainees rotate between hospitals, which can give rise to cash flow problems. g. Repeated pre-employment checks are wasteful of time and resource. Although various agreements exist to deal with some of these issues the situation is far from ideal, and works to the disadvantage of the junior doctors. RemedyUK believe that there are significant advantages in having a single contract of employment to span the entire period of the employment. This would help address these issues. A single Lead Employer within a region could hold the contracts, and would then subcontract the individual doctor to the other hospitals in the rotation. We would recommend that this be considered in any future plans or changes to junior doctors contracts. |
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