As the move to seven day working within the NHS gathers momentum, Udara Ranasinghe look at the pitfalls that can befall organisations in its implementation
7 day working
The momentum is gathering for seven day working within the NHS. For most members of the public, it comes as a surprise that the NHS is not already a seven day, 24 hour service. The NHS is aligning itself to meet these expectations. In many parts of the country, frontline staff are already working to seven-day arrangements for some services.
However, a whole system change to ensure comprehensive seven-day working arrangements raises a number of pitfalls for the unwary. Here, we take a look at three of those:
Pitfall one: the (in)flexibility of current contracts
Current staff contracts may not have sufficient flexibility to implement effective seven-day working.
The consultants’ contract is a case in point – under the current national consultants contract, consultants can refuse to carry out non-emergency work between 7pm and 7am and at weekends. While the BMA has recognised that emergency services may need to be carried on during this “premium time”, they remain sceptical of the viability of elective services in premium time. National talks are underway but it is unclear when agreement might result in changes to the national contract and what these will be.
‘New models of service will be vital in providing effective seven-day services’
Under Agenda for Change, while employees can be required to work under seven day arrangements, the additional costs associated with unsocial working hours may mean that, in reality, seven day working is not viable.
Requiring employees to work on a 24 hour/seven day basis without their agreement or associated additional payments may mean breach of contract, leading to constructive unfair dismissal claims.
One solution is to obtain agreement to the new working/payment arrangements. For new staff, this may mean employing at the outset on non-national or hybrid terms. Consideration will need to be given to the effect on industrial relations of doing this. For existing staff, it may mean a consultation process which has the potential to result in termination and re-engagement of any objecting staff. While many staff recognise the public support for seven day working, before embarking on change a clear employee engagement and industrial relations strategy should be devised.
Pitfall two: Scarcity of staff and new models of service delivery
A lack of appropriately skilled/trained staff to provide seven day services may lead to matrix or cross-organisational type structures being created by pooling resources between bodies. Leaving to one side any potential competition issues, this type of collaboration may raise TUPE and potential breach of contract issues. In addition, governance issues may arise as a result of creating new structures with inadequate lines of accountability.
New models of service will be vital in providing effective seven day services, but in planning for these new arrangements it is important to account for the legal implications of change on the workforce.
Pitfall three: Discrimination claims
The NHS quite rightly prides itself on the diversity of its workforce. However, the move to seven day working may lead to more claims for discrimination. For example, there could be the potential for religious discrimination claims where employees of a particular religion are required to work at times which are mandated periods of worship or rest. Female staff may complain that different working arrangements disproportionately and unlawfully impact on them and their child care arrangements. Disabled employees may not be able to change locations/hours to meet new service delivery arrangements.
Our view is that provided such issues are dealt with sensitively and there is a clear rationale for the changes that are being proposed, these risks should be manageable and potential claims defensible. Again, a proper consultation will be key. Sensitive handling may mean alternative arrangements are considered and appropriate evidence gathered to support the decision that is made.
To deliver truly patient centred care, seven day working for the NHS is not a luxury but a necessity. The legal issues should not prevent that direction of travel. However, they may mean the journey is a bumpier one than it need be for those who have not planned their route map.
Examples of existing seven day arrangements
- One foundation trust client started working with colleagues in their diagnostics teams with a view to agreeing a 24 hour, seven day working shift system. The services provided by these teams are key to the delivery of a range of hospital services, including many in A&E. Working with staff, the trust has implemented seven day working that provides the cover the trust needs and sufficient flexibility to accommodate a variety of employee working patterns.
- Another foundation trust is taking a service line by service line approach, rolling out seven day work gradually by implementing it in phases for different areas.
- A third NHS body has amended the contract it offers to new consultants so that they are appointed to terms that allow the organisation to require them to work a seven day pattern. This has been done following consultation with doctors and is part of a wider strategy to introduce effective seven-day working arrangements.
Udara Ranasinghe is a partner, employment and pensions group, at DAC Beachcroft LLP