Consultation

[61met]

Hi

Yesterday i received a letter from my employer to advise that following on from an informal service review that the NHS job that I have been doing for over 10 years is now in consultation for change.

 

Up until now i have worked 7-2,1 weekend 3 with my hours being annualised to 4.67 weekly and not working bank/public holidays.

 

What I am being told is they now want me to be available for all bank holidays including Christmas Day and to be available to work the same amount of hours but any time between 8am -9pm. It also appears that the additional hours involved in working Bank Holidays wouldnt accrue any additional holiday either.

 

All employees are invited to attend a meeting with management on a weekday which i cant attend as I hold down another job in the week. Almost half the permanent staff are weekend Only yet they still choose a weekday for this meeting.

 

What are my rights. We have been told that this is being done under 'organisational change' which appears to mean that anything they want to bring in they can. Is this true?

[honeybee13]

Hello there and thank you for joining the forum.

 

Is this part of the changes going on throughout the NHS? CAG also has an NHS forum and it might be worth putting a link to this thread on that forum. Don't copy and paste this, or we'll both be in trouble with the site team. There may be someone on the NHS forum who knows specifics about what's going on there, but we'll do our best here.

 

HB

[Panthro]

Hiya, I replied to your thread about your bank holidays. Sorry I can't help about the consultation aspect or your 'rights' in that regard. Does your trust have an Organisational Change Policy? Might be useful to have a peruse to see if they are operating within their own guidelines re: meeting with weekend workers.

 

From your other thread, I realise you work 1 weekend in 3. As I said in my reply, public holidays (such as Christmas day) which fall on the weekend are not actually PH under Agenda for Change, i.e. it is classed as a normal Saturday or Sunday therefore you would not be entitled to hours in lieu (the underline emphasis is mine).

 

13.4 Staff required to work or to be on-call on a general public holiday are entitled to equivalent time to be taken off in lieu at plain time rates, in addition to the appropriate payment for the duties undertaken

 

You would be entitled to the public holiday component of your leave entitlement however. Which for full time is 8 days.

 

Although you cannot not work this Xmas day for instance (as it is not a PH), you would be entitled to take it as annual leave - with your employers consent of course.

13.7 Part-time workers’ public holiday entitlement shall be added to their annual leave entitlement, and they shall take public holidays they would normally work as annual leave.

 

Agenda for Change Handbook

[SarEl]

We have been told that this is being done under 'organisational change' which appears to mean that anything they want to bring in they can. Is this true?

 

Pretty much - yes. They must abide by the requirement to consult (although this does not mean that they must agree anything you say). If there are collective bargaining arrangements in place (which is very likely) they ust abide by those too. But in the end an employer can make contractual changes with or without your agreement and more often than not, do so lawfully.

[61met]

Thanks everyone. My union rep has just phoned me to have a chat. There seems to be a few discrepencies with procedure. When we were originally sent our letters almost 2 wks ago it said that the union would be advised and to her knowledge thay havent been. Also in the month prior to consultation our supervisor amended 5 members of staffs leave allowance using a new policy that wasnt even law at the time! She was also quite interested in some informal meetings prior to consultation where management past and present said they would have consultation and get the change they wanted, if it didnt suit we should leave. It really does make a mockery of the menaing of 'consultation'.

 

What is meant by 'collective bargaining arrangements?

 

If in the end after all this goes through, of which i am in little doubt it will, would i have grounds for constructive dismissal. What happens if i dont sign a new ammended contract?

[SarEl]

Thanks everyone. My union rep has just phoned me to have a chat. There seems to be a few discrepencies with procedure. When we were originally sent our letters almost 2 wks ago it said that the union would be advised and to her knowledge thay havent been. Also in the month prior to consultation our supervisor amended 5 members of staffs leave allowance using a new policy that wasnt even law at the time! She was also quite interested in some informal meetings prior to consultation where management past and present said they would have consultation and get the change they wanted, if it didnt suit we should leave. It really does make a mockery of the menaing of 'consultation'.

 

What is meant by 'collective bargaining arrangements?

 

If in the end after all this goes through, of which i am in little doubt it will, would i have grounds for constructive dismissal. What happens if i dont sign a new ammended contract?

 

Collective bargaining is when a union and an employer have reached an agreement about how workplace relations are conducted - which I thought might cover you, and from what youi say, it does.

 

But if this all goes through, if you have a claim it will be unfair dismissal, not constructive dismissal - but I will lay bets that it will be changed within the legal framework and that you won't have a claim. The NHS are past experts at getting it right.

[61met]

What would be the difference between constructive dismissal and unfair dismissal?

[honeybee13]

What would be the difference between constructive dismissal and unfair dismissal?

 

Huge. Have a read around today's posts and others. CD cases are won by only about 3% of claimants. You could have a look at the directgov or ACAS websites for explanations.

 

HB

[SarEl]

What would be the difference between constructive dismissal and unfair dismissal?

 

Very simplistically, constructive dismissal is when you resign but allege that the employer forced you to due to their actions - unfair dismissal is when the employer terminates your contract. That really is very simple - and it's far from that simple, but if the employer changed your contract and you didn't agree (or your union didn't agree where there are collective bargaining arrangements in place) then you have been dismissed - but whether it is unfair or not is a different matter, and I have enough experience of NHS changes to know that they can always justify the changes to an extent that the dismissal would be fair in 99.9% of cases.

[61met]

Hi,

 

It now appears that HR have failed to do something mentioned in the initial letter. It said they would advise the unions, which they failed to do. The union have requested an extension because of that and also because they failed to send a letter to one of my colleagues until this week, effectively only giving her 15 days of consultation.

 

As these are both HR errors do they have to extend. I understand this is only putting off the inevitable but feel it is worth making a stand if it was something that should have been done.

[honeybee13]

Have you spoken to ACAS? They're normally pretty good on this sort of thing.

 

My best, HB

[postggj]

This remit falls under the employment rights act

 

are the positions being taken over by a private company for instance

 

transfer of undertaking come into play then

 

with out the full picture i cant comment ime afraid

[SarEl]

This remit falls under the employment rights act

 

are the positions being taken over by a private company for instance

 

transfer of undertaking come into play then

 

with out the full picture i cant comment ime afraid

 

No it isn't a transfer - it is organisational change to amend shift patterns within an NHS organisation. Unfortunately for the staff involved such changes are taking place across the NHS, and if anything the pace is increasing now due to public sector cuts.

[61met]

Yes, thanks SarEl but does anyone know if we are entitled to an extension to the consulation period as HR didn't advise the union when they had told employees they had.

[SarEl]

Probably, but it does depend on whether you have a collective bargaining agreement, and what the terms of that are. An employer does not have to consult or notify "the union" if there is no collective bargaining agreement in place. As I said, there proabably is, but I am guessing based on your employment, not on facts!

[61met]

Hi

 

I've just spoke to ACAS as a previous thread suggests. They have advised to start a grievance as my employers are not being compliant with their own terms and conditions in not notifiying the unions as they had stated they would be! If I were to do this, as the lady explained, the consultation would have to be put on hold until the grievance were dealt with satisfactorily.

[SarEl]

Unfortunately, as is often the case, the lady is wrong! A grievance can be heard concurrently with consultations. There is, as I said, no obigation for an employer to notify the union unless there is a collective bargaining agreement in place. If there is, then it is up to the union to argue this. If there isn't, then the employer hasn't acted wrongly. Whilst I cannot tell you what to do, my advice would be to keep talking to the union about this. Putting a grievance in will not, in iteslf, hold up the process - but it does put your head above the parapet, which is a place you may not want it to be! If a collective bargaining agreement is in place the union should be fighting their own corner.

[61met]

Sorry, without asking my union rep I cant be sure if we have collective bargaining in place but would have though so as Unison are recognised by the NHS. As for my head being above the parapet, I think it's a little late to be concerned. I've worked there for 11 years and have never been one to roll over if I think I'm being treated unfairly.

It would seem a really bad show if ACAS are giving out false information, and very dissappointing.

[61met]

HR have obviously realised their mistakes and have had to extend the period by another 2 wks and have agreed to meet with the weekend workers. I'm sure it's a small victory and that mangement will win the war but we have managed to highlite that several sneior management having being doing their jobs!

[SarEl]

Sorry, without asking my union rep I cant be sure if we have collective bargaining in place but would have though so as Unison are recognised by the NHS. As for my head being above the parapet, I think it's a little late to be concerned. I've worked there for 11 years and have never been one to roll over if I think I'm being treated unfairly.

It would seem a really bad show if ACAS are giving out false information, and very dissappointing.

 

It's a bad show and very disappointing, but over the last 18 months or so the quality of ACAS advice is poor and often wrong! They changed the way they worked, expanded, and became a call centre! The people on the phones are lowly paid and unqualified, reading from a script like any other call centre - these are not the same staff who negotiate deals with BA and the unions! I am afraid that many of their best staff are now "back room" dealing with tribunal cases, mediations and other such things - the general public who phone for advice are often misled by poor advice now - and yes, it is very disappointing. But I have seen too many examples of ACAS giving out wrong, inaccurate, or simplistic advice, all of which are misleading at best.

 

But it is good that management have climbed down on this - I agree that the collective bargaining agreement was likely, but as I don't know exactlly what you do or which union was involved I could only guess it was the case, and not be sure.

[Sidewinder]

It's a bad show and very disappointing, but over the last 18 months or so the quality of ACAS advice is poor and often wrong! They changed the way they worked, expanded, and became a call centre!

 

I have to agree - the ACAS website is a great source of advice, but I too had noticed in the past that the quality of advice over the phone was very vague. Not in all cases, but certainly the last time I spoke to them I just couldn't be confident with the advice given.

[Atlas01]

61met, may I ask what you are actually trying to achieve?

 

I'm involved in these negotiations with a large public sector council and have just had consultation extended and such but the bottom line is there is no point trying to second guess a unions undertaking on here as without the full details of the arguments from both sides it wouldn't be possible to guess if what's being done is right or wrong. It sounds more like your interested in the high end stuff and not your own individual issues.

 

Consultation will end and if the union has achieved nothing the changes will take effect as you will be dismissed and re-engaged on the new terms if you fail to accept them. There is the possibility your union can agree them on your behalf but this would only be done if there was a benefit to members in some way and they should consult with their members first unless they are insane and agree without thinking of the consequences, I have seen this happen!

 

As they are currently disputing consultation time i'd expect them to be against the proposals and this is where your problem lies.

 

If the unions membership as a majority are not accepting the proposals and more importantly are willing to resist there may be some compromise (or even a full backoff)

 

If not your left to consider the following points.

 

Can you work the new terms.

Are the any legitimate reasons you could not, being a carer, working your second job etc, these are the things you should actually be considering as an individual. Does anything in your life actually stop you undertaking the new terms, in addition with the cushion of time could you change your schedule round so you could work them

 

The easy argument for this issue is to argue enough that the contract change fundamentally breaches it because you have a legitimate reason you cannot undertake the new terms, not wanting to accept them because you don't like them would be argued by the NHS to be minor changes done with reasonable notice won't wash in this climate and if it did the union would have simply sat back and told them they would sue if they went ahead. That argument is only a path to redundancy or if your lucky redeployment. Unless you could claim legitimately as a carer/parent of a young child under whatever flexible/family friendly policy the NHS have that you should be excluded.

 

The only other thing to check is if your contract is set to exact times/dates or if it's x hours between x&y o'clock on a rotating shift basis.

 

All that said and in the hope of sounding more positive i've just done a cot3 for someone in similar circumstances and that was for breach of contract and also indirect disability discrimination, they failed to give adequate notice (2 weeks) and also failed to notify in writing the changes to hours which were specified in the contract. There was also an argument over contractual overtime they did not want to test so the guy got a few ££ as a payoff before it went to court. (still did the new terms though)

 

I don't work for the NHS but i doubt their HR will be far from local government ones and they are often remiss in checking the technicalities as they fail to check the procedural and technical details especially when dealing with single employees and local reps who have not got the experience that's actually needed in contractual issues.

 

On the subject of acas, [rant on] i've found them to be more of a pain than a help due to the amount of people i see who say "acas said this is unfair/acas said i shouldn't be sacked/ acas said everything i want to hear not what i need to hear"

 

The amount of times I've felt like saying "Well get acas to bloody represent you then" add CAB to this list

 

I once rang them to see if i was totally useless at my job with a scenario i knew the answer to. The advice was terrible and completely wrong.

 

I think acas are good for the most basic of advice and signposting on the switchboard. Nothing more in my experience.