It is Government policy that the NHS should be the preferred provider of NHS services. There may be circumstances however in which local commissioners decide to put an existing NHS service out to competitive tender.
In this situation, commissioners are responsible for ensuring that any potential new provider (and hence potential new employer) provides evidence that they are both able and committed to meeting the employment standards outlined in this NHS Staff Passport.
This should be reflected in the relevant tender processes and documentation, including the terms of any subsequent service contract. The responsibility applies equally to any change of service delivery linked to the development of a social enterprise and is underpinned by Department of Health policy guidance to commissioners and employers. The responsibility for making sure that the commissioning process is done properly lies with your Strategic Health Authority.
Where changes to service delivery are being considered which have the potential to lead to a change of employer, the responsibility for ensuring that you and your trade union representative are fully engaged lies with your current employer up to the point of transfer and with your new employer thereafter.
This responsibility is underpinned by the NHS Constitution and in the principles designed to create a framework to support NHS Employers in managing change - NHS Next Stage Review: Managing Organisational Change Principles.
Where you have concerns that decisions are being made without your full engagement, these concerns should be raised through local management and trade union structures as soon as practical. Where problems cannot be resolved through this process, you will have access to formal grievance procedures.
Where you and/or your trade union representatives have concerns about either:
- the ability or commitment to good employment standards of a potential new provider of services
- whether the commissioning process is fully complying with Department of Health policy guidance in this area.
These concerns should be fed into the commissioning process as soon as practicable through local management and trade union structures, and as a last resort through Strategic Health Authorities partnership structures.Failure to to properly consider staff concerns would be a potential breach of the NHS Constitution, as well as Department of Health policy guidance.
When a decision is made to award a service contract to a new employer, certain legal rights are triggered in relation to transfer of employment. A failure by your current employer to consult with you and your trade union or to provide proper information on the terms of transfer and any linked changes can be potentially challenged through an employment tribunal if they cannot be resolved internally.
Following any transfer to a new employer if you feel the employment standards contained in this NHS Staff Passport are not being adhered to, you should raise your concerns through local and trade union structures and if necessary through your new employer’s grievance procedure. If changes to your terms and conditions of employment are introduced without your agreement, these may be challengeable through an employment tribunal if internal processes cannot resolve the problem.
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