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The ICS transition: your questions answered

MiP is fully committed to supporting members through the ICS transition in England. Here are our best answers to some of the key questions you may have about the transition and how it will affect your job. We will keep this page updated as the transition progresses.

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Employers and contractual arrangements

1. Will this have an impact on the jobs of members working in provider trusts?

The full impact of the legislation is not yet known, as it could change while going through the legislative process and subsequent interpretation. Where a job involves doing work which will transfer to the statutory NHS ICS body, there is likely to be an impact.

2. I am seconded from a CCG to do work in the ICS. How will this impact me?

Provided the work you are doing for the ICS is still required there should be no change in your current arrangement, except that your substantive employer will change on transfer to the statutory NHS ICS body. All the contractual terms of your secondment should remain unchanged. If there are any changes at all these should be set out in a 'measures letter' prior to the transfer and you will be informed of them. These are likely to include technical matters such as a change in payroll provider, pay date etc. According to the guidance, NHS England's  employment commitment applies "even when not legally required" (see page 6).

3. I am seconded from a trust to do work in the ICS. How will this impact me?

Provided the work you are doing for the ICS is still required there should be no change in your current arrangement. All the contractual terms of your secondment should remain unchanged except that the employer you are seconded to will change. NHS England's  employment commitment applies "even when not legally required" (see page 6).

4. Functions will be transferred from NHS England. Will NHSE staff who deliver those functions be affected?

Not necessarily. This has not been determined yet. It is possible that some or all affected NHSE staff will continue to be embedded or seconded and retain their substantive employer, and the posts that will be affected have yet to be determined. Any changes to the draft legislation as it progresses through parliament could change which posts are affected.

5. What about transfers from CCGs to trusts in place-based partnerships?

Any proposals of this sort result from decisions being made at local (STP, ICS or ICP) level. The guidance document FAQs on NHS England and NHS Improvement’s legislative recommendations on ICSs encourages employers to minimise uncertainty and limit employment changes as much as possible. If this level of disruption is being proposed locally you should take it up with your local MiP Rep or National Officer so MiP can raise this with your employer. 

6. What will be the impact on CSUs and CSU staff? 

Contractual relationships between NHS bodies should not be affected, so working arrangements under a contract for services should continue as they are, but with the new statutory NHS ICS bodies rather than CCGs. This is clarified on page 7 of the Guidance on the Employment Commitment, which also makes clear that the employment commitment applies "even when not legally required" (page 6).

7. Have the people who have already been recruited to ICS posts got an unfair advantage over CCG staff?

According to the Guidance on the Employment Commitment, it is envisaged that the transfer of staff below board level in CCGs will be a simple ‘lift and shift’ from one organisation to another (page 4). The employment commitment has no end date, so any subsequent reorganisation undertaken by the new statutory NHS ICS body would be expected to follow their own organisational change policies on managing organisational change (page 7) and establish a robust economic, technical or organisational reason for changing colleagues’ contractual terms and conditions of employment in the future. This would normally involve full consultation with the staff side trade unions. These issues should be dealt with through that consultation process. Guidance on the process for appointments to ICS board-level posts is expected shortly. 

8. What will happen about jobs in different CCGs being paid at different grades?

Guidance on the Employment Commitment envisages that the transfer of staff below board level in CCGs will be a simple ‘lift and shift’ from one organisation to another (page 4). Any anomalies in relation to pay and job descriptions will then be for the new statutory NHS ICS body to address in accordance with the law and through consultation with their local trade union representatives.

9. How will current operations transfer into the new world?

The Guidance on the Employment Commitment states that it is envisaged that the transfer of staff below board level in CCGs will be a simple ‘lift and shift’ from one organisation to another (p4). Any reorganisation of work after that point will be for the new NHS ICS statutory body to undertake in accordance with agreed organisational change procedures, after full consultation with the staff side trade unions.

10. My service is hosted (or will be hosted) by a trust. How will this affect me?

The full impact of the legislation is not yet known, as the bill could change whilst going through the legislative process and subsequent interpretation. Where a job involves doing work which will transfer to the new statutory NHS ICS body there is likely to be an impact. The employment commitment applies "even when not legally required". (See page 6 of the Guidance on the Employment Commitment.)

11. Will Public Health England be transferred to NHS England and then to the ICS? Will existing terms and conditions still apply?

We are not aware of any wholesale proposal to do this at this point. There may be some jobs currently in other NHS bodies which are found to cover work which is transferring to the new statutory NHS ICS body, and if it is determined that these should transfer then the employment commitment will apply, and the posts will be lifted and shifted unless those posts are deemed to be at board level.

The Employment Commitment

NHS England has published guidance on the Employment Committment, developed jointly with MiP and other trade unions through the Social Partnership Forum (SPF). To find out more, read the FAQs page on the SPF website.  

12. Which posts are counted as ‘board-level’ posts?

The Guidance on the Employment Commitment (page 5) defines ‘board-level’ as those colleagues who are likely to be affected by change following the confirmation of a statutory ICS executive/board-level structure. It is anticipated that this will include CCG Accountable Officers, ICS Chief Executive Officers, and director or executive-level roles that report to the chief executive officer of an ICS or an accountable officer of a CCG, as well other posts on the CCG governing body and some other senior posts within the wider system. 

13. If my ‘board-level' post ceases to exist, what would be suitable alternative employment for me? Will I be pressured to take an alternative job which I think is not suitable?

In law, suitable alternative employment is determined in relation to a number of factors, including location, hours of work, remuneration, job duties and status. Any member of staff who is put ‘at risk’ of redundancy would be expected to apply for suitable alternative employment in the wider NHS system, and to justify their reasons for not applying for jobs which they deem not to be suitable prior to being dismissed on grounds of redundancy and receiving a redundancy payment. A failure to accept suitable alternative employment could result in forfeiting the right to redundancy. You are advised to discuss any such refusal with your National Officer prior to making such a decision.

14. Will I be able to take redundancy and what is my redundancy entitlement? What is the legal position?

The employment commitment to staff in jobs below board level means that the vast majority of jobs should continue to exist at the point of transfer, so no redundancy will be payable. It may be necessary for some staff at board-level to leave the NHS with a redundancy payment, although it is expected that every effort will be made to identify and secure suitable alternative employment within the NHS first.

Redundancy pay in the NHS is calculated on the basis of one month’s pay per complete year of reckonable service served, with a year’s pay being capped at £80,000 per year and the total number of months payable being 24. The first £30,000 of redundancy pay is taxable at 0%, and anything beyond that is subject to tax in accordance with your own personal tax status.

15. Will I still be able to retire on ill-health grounds?

In accordance with the NHS Terms and Conditions of Service Handbook you may be able to retire early and take your pension benefits if you’ve been both a member of the NHS Pension Scheme for a minimum of two years and are too ill to work in your present job. The forthcoming reorganisation does not alter this right.

16. Will voluntary redundancy be offered?

This matter is under discussion so we do not currently know whether voluntary redundancy or MARS will be on offer.

17. I am already on pay protection from a previous restructure. Will this limit my options further and will I face another pay cut?

All terms and conditions should remain intact at the point of transfer, so nothing should change in respect of your contractual right to pay and the level of your pay.

18. Will I have a job after the transfer? When will I find out?

The Guidance on the Employment Commitment (page 4) states that it is envisaged that the transfer of staff below board level in CCGs will be a simple ‘lift and shift’ from one organisation to another, so your existing contractual arrangement should continue. The board-level posts appointment process is due to run during the remainder of 2021.

19. If I am made redundant over the age of 50 on the grounds of efficiency of the service can I retire early?

In accordance with the NHS Terms and Conditions of Service Handbook, members of the NHS Pension Scheme will receive payment of benefits without reduction if they retire early in the interests of the efficiency of the service, provided that they satisfy all the qualifying conditions set out in paragraph 16.10 of the handbook:

  • they are an active member of the NHS Pension Scheme in respect of the employment that is being terminated
  • they have at least two years’ continuous service and two years’ qualifying membership of the NHS Pension Scheme
  • they have reached the minimum pension age, whether that is 50 or 55 (in accordance with their personal rights)

Paragraph 16.30 of the NHS Terms and Conditions of Service Handbook, states:

These arrangements are aimed at employees who have given valuable NHS service in the past but are no longer capable of doing so. This might be because of new or expanded duties or a decline in the ability to perform existing duties efficiently but not so as to qualify them for ill health retirement. 

There is, therefore, a capability angle to considerations around early retirement on efficiency grounds, which we would not expect to be applied widely. In addition, this is a discretionary flexibility at employer level, and the cost associated with it is the added strain on the pension scheme, which has to be met by the employer. 

Fairness and equality

20. Will recruitment to the new structures be competency-based, open and transparent?

The trade unions are being consulted on arrangements and procedures being put in place and will continue to argue for competency-based, open and transparent recruitment procedures. 

21. Will there be fair and equitable access to upcoming ICS posts?

The trade unions are being consulted on arrangements and procedures being put in place and will continue to argue for fair, equitable, open and transparent recruitment procedures.

22. Can MiP push for skills development programmes for board-level staff to support joint or integrated working?

Yes, we can do this.

Minimum Disruption

23. If no jobs are at risk below board level why are we not allowed to fill vacant posts except with secondments?

There is no national instruction not to fill vacant posts below board level. If this is happening locally please contact your MiP National Officer or Rep for support in engaging with your employer about this practice. 

24.  Is my employer allowed to carry out organisational change between now and 1 April 2022?

The guidance in the document FAQs on NHS England and NHS Improvement’s legislative recommendations on ICSs encourages employers to minimise uncertainty and limit employment changes as much as possible, and the ICS Design Framework (page 49) asks affected organisations not to carry out significant internal organisational change and not to displace people. If any of these things are being proposed locally, you should take it up with your local MiP Rep or National Officer so MiP can raise the issue with your employer. 

Timetable and process

25. Why are there delays and when will the guidance be issued?

The ICS Transition Partnership Group first met on 29 April 2021 and has been working through the guidance documents required, which then have to go through a sign-off process. The terms of reference of the group have been published and are accessible here. The ICS design framework and guidance on the employment commitment were published on 16 June 2021 and are accessible here.  

26. When will the HR principles be published?

The full HR framework is expected to be completed around the time of the second reading of the bill in parliament.

27. Will the transfer be made under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) or the Cabinet Office Statement of Practice (COSOP)?

Discussions have not yet taken place around this matter. 

The future ICS

28. Will ICS structures be dictated by NHSE?

The ICS design framework details the required structures and is accessible here

29. What will happen about the boundary discussions?

These will be determined as per the established timetable. We do not yet know what the outcomes will be.

30. What will happen after the ICS is formed? Will there be more organisational change?

The new statutory NHS ICS bodies will be encouraged to evolve in order to deliver the work required of them, so there is likely to be some organisational change in every ICS at some point after April 2022. Under the 2006 Transfer of Undertakings (Protection of Employment) Regulations, any changes require an economic, technical or organisational reason to go ahead, and must be subject to the required consultation processes with recognised trade unions.

Miscellaneous

31. Am I being constructively dismissed?

Probably not, because constructive unfair dismissal requires a resignation in response to a repudiatory breach which is so serious as to go to the root of the contract and destroy it. There are not many actions on the part of an employer capable of doing that. Constructive dismissal also requires an employee to tender their resignation as soon after the repudiatory breach as possible, otherwise there is a risk that the employee will affirm the contract by the action of staying at work. It is also worth considering that the success rate for constructive dismissal cases at Employment Tribunals is approximately 5%.

Section 95 (1)(c) of the Employment Rights Act 1996 states:

...an employee is dismissed by his employer if… the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

 
To establish a claim for constructive dismissal four conditions must be satisfied:

  1. There must be a breach of contract by the employer. 
  2. That breach must be sufficiently serious to justify the employee resigning, or else it must be the last in a series of incidents which justify the employee leaving. 
  3. The employee must leave in response to the breach and not for some other unconnected reason.
  4. The employee must not delay too long in resigning in response to the employer's breach, otherwise the employee may be deemed to have waived the breach and agreed to vary the contract.

If you wish to pursue a claim for constructive dismissal with the support of the union, our solicitors must first  establish the merits of the case before we can agree to provide you with legal representation. If they judge your case to have reasonable prospects of success and we agree to provide you with legal representation, there is still no guarantee that a court will find in your favour. Please always take advice from your National Officer prior to tendering your resignation.

Note the time limits which apply to legal claims of constructive unfair dismissal:

Employment Tribunal claims 

  • Time limit: three months less one day from the dismissal, breach of contract, act or last in the series of acts of discrimination
  • Early conciliation: can be extended up to 6 weeks in length, but no further extension
  • Compensation: damages for breach of contract (no compensation for injury to feelings is payable unless a claim for discrimination is upheld)

Civil claims

  • Breach of contract: six years 
  • Negligence (only if injury is reasonably foreseeable): three years from date of injury or diagnosis
  • Protection from Harassment Act: claims must be made within six years of the date of the act being complained of.
Last update: 18 June 2021. 

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