Change in the workplace

Ensuring accountability in the process 

Your employer should have a clear policy for the management of organisational change. This should set out the principles, commitments and accountabilities on health, safety, equalities and the environment. It should also clearly lay out the consultation process. 

The priorities for a fair process are: 

• Information: Stewards, safety reps and members must be given all the necessary information to meaningfully respond to the new proposals (structure, job roles, bands, etc.). Risk assessments and equality impact assessments should also be made available, as well as the reasons for the changes and supporting evidence.
• Consultation: The consultation period should allow sufficient time for proper participation, with a clear timeline.
• Communication: There should be meetings involving management, stewards and members to present proposals, hear questions and raise concerns about the process. Written communication is also important for transparency. Stewards should have the opportunity to formally put forward concerns and alternatives. 

Part of your role as a steward is to make sure that the policy is followed. The process matters because it ensures workable decisions get made. 

Organising members to respond to changes 

Member engagement is important for developing a response to the employer, and to lay the groundwork to push back against changes that have a negative impact on staff. 

Get together with the other safety reps and stewards in your trust or workplace and do a mapping exercise on where the physiotherapists and associates reside at your workplace or trust and how the changes could affect them. 

For more guidance on organising and mapping, see these resources on our virtual learning environment: 

• Building the CSP Workplace Team
• Building the CSP in Your Workplace – Mapping

If the process isn't followed or your members’ concerns are not addressed, the next step would be to submit a formal grievance. For example, if management are not giving you enough information or time to participate in their consultation process, then a grievance can challenge this. Ask for the status quo until the grievance is resolved. 

When you find yourself in these situations involve your Senior Negotiating Officer as soon as you can. See the CSP’s Grievance Advice Sheet for guidance. 

Before restructuring

Before a restructuring safety reps can:  

• Check if your trust’s policy on organisational change includes reference to the potential impact on health and safety and how it will be addressed.
• Ensure consultation on proposed changes is included in the terms of reference/agenda of your health and safety committee.
• Get relevant information and support through their contacts/relationships with Estates, Infection Control, Health and Safety Advisers.
• Involve members by getting their views about how the changes may impact on their health and wellbeing.
• Access the employer’s risk assessment of plans/proposals and if needed, assert the legal right to be consulted about them.
• Check with the employer whether contractors are affected and, if so, how they will be involved. 

During restructuring

During consultation safety reps can: 

• Keep it on the agenda of the health and safety committee.
• Undertake workplace inspections (for example, conduct a membership stress survey) to highlight potential hazards arising from the proposed changes.
• Review employer’s risk assessments and provide feedback to managers and members.
• Work with managers and members to determine that staff’s training needs and access to appropriate supervision and support are not compromised.
• Check if communication between managers and staff is effective.
• Undertake proactive inspections (for example, stress surveys).
• Ensure management provides incident data to the health and safety committee.
• Review management’s stress audit and or risk assessments.
• Regularly meet with the CSP steward and other relevant union reps to review if there is any health and safety impact on members. Discuss what appropriate intervention or response is required from members, the CSP and employer.
• Use your knowledge and training to access the employer’s processes (for example, grievance procedures) if members’ health, safety and well-being is compromised. 

Risk assessment checklist

Here is a checklist to work through when reviewing a risk assessment: 

• Have all the steps in the risk assessment process been covered? (Identify the risks; decide who might be harmed; evaluate the risks; record findings; monitor & review.)
• Are solutions based at an organisational level with an emphasis on prevention – i.e. managing the root causes of the hazards identified?
• Are arrangements (e.g. surveys, meetings, focus groups) in place to identify and address the risk factors? Consider the various demands on staff to do the work (time/resources); who is responsible; the staff mix of those involved (skills and experience).
• Have the gaps between the current situation and good practice been identified for relevant risk factors?
• Has the workforce been asked for their views on workplace conditions? Have their suggestions been sought for solutions to problems identified (e.g. improving working conditions, changing the way work is organised)?
• Are the training needs for staff taking on new roles/responsibilities in the new structure been properly accessed and catered for?
• Is there a commitment to review the effectiveness of decisions a couple of months after implementation? Will the changes be audited against key service/professional performance indicators within six or twelve months post implementation? 

TUPE transfer checklist

When you are involved in a TUPE transfer, remember this checklist: 

• Keep your CSP Senior Negotiating Officer informed of what is happening as soon as you hear of any proposals to tender your services or transfer staff.
• Seek an early meeting with management to clarify what is happening.
• Obtain information on who and what is likely to transfer. Ask for information on any potential bidders, including information on their financial performance, their current terms and conditions, whether they have recently declared any redundancies, and whether they recognise trade unions.
• Seek agreement from the current employer for union representatives to interview or meet prospective bidders.
• Seek agreement that employees who do not want to transfer retain the right to remain with their current employer.
• Ensure that the employer provides facilities for meeting with affected employees and other representatives both at the current workplace and at the workplace where work is being transferred.
• Carry out regular reviews to ensure that the terms and conditions of transferred staff have not fallen behind those of workers who remained with their old employer.
• Alternatively seek agreement to automatically improve terms and conditions in line with those offered by the old employer.
• Make sure early retirement pensions remain part of any redundancy pay packages.
• Negotiate for new employees to benefit from the same terms as transferred staff. 

Am I entitled to a redundancy payment? 

To qualify for a redundancy payment, you must be an employee, working under a contract for an NHS employer and have at least 2 years of continuous full-time or part-time service. This contract may be for a fixed term or permanent. 

For the purpose of determining eligibility for redundancy pay, previous continuous employment with different NHS employers may be counted - as long as there has not been a break of a week or more (measured Sunday to Saturday) between any periods of employment.

• See Section 16 of the Agenda for Change handbook.

Redundancy payments are made on the basis that you have not obtained, been offered or unreasonably refused to apply for ‘suitable’ alternative NHS employment.   

While remaining employed, there is no set timescale or process prescribing the search for suitable alternative employment: apart from your employer is under a duty to seek to provide you with the details of any job that may be deemed as suitable alternative employment. This can occur up to your final day of work. 

In general terms, whether a job is 'suitable' will depend on a number of key factors including: 

• how similar the work is to your current job
• the terms of the job being offered
• skills, abilities and circumstances in relation to the job
• the pay (including benefits), status, hours and location. 

The question of suitable alternative employment is determined on a case by case basis. 

Providing you do not join an NHS employer, there is no effect on your redundancy payment by joining a different public sector employer. 

How is a redundancy payment calculated? 

Assuming you are eligible (see above), your redundancy payment will take the form of a lump sum, dependent on your ‘reckonable service’ (see below) at the date of termination of employment. 

‘Reckonable service’ means the length of your continuous (full-time or part-time) employment with your present or any previous NHS employer, up to the date of termination of the contract.  Where there has been a break in service of 12 months or less, the period of employment prior to the break will count as reckonable service. 

The lump sum will be calculated on the basis of one month’s pay for each complete year of reckonable service, subject to a minimum of two years’ continuous service and a maximum of 24 years’ reckonable service being counted. No redundancy payment will exceed £160,000. 

‘Retire and return’ arrangements:  as any employment that has been taken into account for the purposes of those pension benefits cannot be used a second time as reckonable service.  So, only service following your return would be counted toward redundancy entitlement. 

• See Section 16 of the Agenda for Change handbook.

Salary sacrifice schemes: Salary sacrifice is covered by employment and contract law, not Agenda for Change. 

In a redundancy situation, providing you have been ‘made fully aware’ of the implications of entering a salary sacrifice arrangement on your terms and conditions of service, it is appropriate to calculate redundancy pay on the reduced salary (i.e. after taking away the salary sacrifice element). Being ‘made aware’ may occur in writing or verbally. 

What happens to my NHS pension if I am made redundant? 

When you leave the NHS, regardless of how, your NHS pension becomes what is known as deferred. 

You cannot make any more payments into it, unless you rejoin the NHS, at which point, you can rejoin the 2015 section of the pension scheme.

If you held special class status in the 1995 section at the point of leaving the NHS, your normal pension age for that section of the scheme would default from 55 to 60. 

Can I be made redundant during pregnancy, maternity, adoption or shared parental leave? 

You have enhanced - but not absolute - redundancy rights if you are pregnant, suffer a miscarriage, are on maternity leave, adoption leave, shared parental leave, or neonatal leave (and for a period of time after such leave).  

If there is an appropriate vacancy, you should have the right to be offered it - not just invited to apply – in preference to any other employee who is similarly affected by the redundancy situation but who is not absent on maternity leave or pregnant.

Where no vacancy exists, your employer can dismiss you on the grounds of redundancy during or after the leave. 

However, care must be taken that you are properly consulted and given correct notice, and there must be a fair reason for the dismissal. You are entitled to receive a written statement of the reasons for your dismissal without having to request it, regardless of your length of service. 

Once the dismissal due to redundancy takes effect, your maternity leave period automatically comes to an end, along with your NHS maternity pay.  You will continue to be paid statutory maternity pay for the rest of the 39 week period if applicable.

The protected period of time:  

• Runs from the point at which you inform your employer of the pregnancy (or the employer could have reasonably known of their pregnancy), until:
  • Miscarriage: two weeks after the loss
  • Stillbirth (from 24 weeks of pregnancy): to 18 months after the date the baby is born
  • Pregnancy/maternity: to 18 months after the date the baby is born
• For adoption, runs from the date of adoption (or the date the child enters England, Scotland or Wales if an overseas adoption), until 18 months
• For shared parental leave, runs from the day leave begins.  If less than six continuous weeks of leave is taken it ends on the last day of leave.  If more than six continuous weeks is taken, it ends 18 months from the date of the child's birth) 

See Section 15 of the Agenda for Change handbook.

What criteria can be used to determine redundancies? 

Any criteria used in a redundancy situation must be based on non-discriminatory criteria, such as roles being removed from a service as they are no longer relevant to the business needs. 

Where competitive interview processes are used, they should be based on non-discriminatory criteria, such as the knowledge and skills required for available posts, with any assessment being fair, objective, consistent and measurable. 

‘Last in, first out’ cannot be the factor used to decide a redundancy - i.e. you should not be put at any greater risk due to a shorter period in role.

Will I work the full three months of my notice if being made redundant? 

Normally you will continue to look for suitable alternative employment during this time. 

If you have been notified of the termination of your employment on grounds of redundancy, and no suitable alternative employment in the NHS is available, you may, during the period of notice, obtain other employment outside the NHS. 

If you wish to take this up before the period of notice of redundancy expires your employer will, unless there are compelling reasons to the contrary, release you at your request on a mutually agreeable date. 

That date will become the revised date of redundancy for the purpose of calculating any redundancy payment. 

Can I take early retirement? 

If you are being made redundant, are member of the NHS pension scheme, and have reached the minimum pension age, you can take your pension early if you wish. 

A payment will be met from you lump sum redundancy payment.  Where the cost to the employer of paying the single payment is less than the value of the redundancy payment, you will also receive any balance due. 

However, if the cost of early retirement is more than the redundancy payment due, you will be offered the one-off option to make up all or part of the difference out of your own personal funds. 

What is a MAR scheme? 

MAR is short for Mutually Agreed Resignation scheme, under which an individual employee, in agreement with their employer, chooses to leave employment in return for a severance payment. 

MAR is not a redundancy or a voluntary redundancy, which would currently be covered by Section 16 of Agenda for Change. 

Severance payments such as MAR should not be made where the circumstances entitle you to a contractual redundancy payment or redundancy benefits under the NHS Pension Scheme Regulations (see above). 

What if a NHS pay award is given after I am made redundant? 

If a retrospective pay award is notified after the date of termination of employment, then the redundancy payment and/or pension will be recalculated, and any arrears due paid. 

• See Section 16 of the Agenda for Change handbook. 

What is the difference between voluntary and compulsory redundancy? 

If I volunteer for redundancy, does the organisation have to accept?

No, the organisation does not need to accept your request for voluntary redundancy. It is not a contractual right and must be agreed to by the employee and employer. Organisations can decline any individual who has applied for voluntary redundancy. However, there should be a fair selection criteria and in the case of the ICB and NHSE voluntary redundancy scheme, organisations should consult with local trade unions on the selection criteria for voluntary redundancy. The scheme also has an appeal process and should you be unhappy with the outcome you can seek to appeal within 10 working days of receipt of the outcome. 

Am I better off going for voluntary or compulsory redundancy? 

You would need to seek advice on an individual basis as there is no right or wrong answer and it will be dependent on personal circumstances and preferences. For example, somebody may prefer the certainty that voluntary redundancy brings as opposed to waiting on a compulsory redundancy process that potentially brings uncertainty. In the NHSE and ICB changes, some organisations will be running these concurrently with the change process, so members may have a better understanding of whether their role is likely to be at risk in any compulsory redundancy situation.