The below questions and answers are specific to NHS transfer situations and do not aim to cover all employment situations. We will review and add to the FAQs included here in response to feedback from employers, staff and their representatives. Although we cannot answer individual questions, we are happy to hear the types of questions that staff are asking to help us to further develop the FAQs. To tell us about any additional questions we should include please email us by clicking the contact us link in the bottom left hand corner of this page.
Pay and terms and conditions
1. If I am transferred under TUPE to an independent provider of NHS services, will future changes in NHS terms and conditions apply to me? It depends on whether the changes were agreed to prior to transfer and if not whether the new employer which includes private sector companies, charities, not for profit organisations, and social enterprises, has agreed to adopt the changes. You should speak to your trade union representative to find out more.
2. Is the Code of Practice in workforce matters in public sector service contracts (known as the two tier code) legally enforceable?
The Code of Practice is legally binding in instances where it has been written into contracts prior to 13 December 2010 (the date at which it was abolished). If it is not adhered to in these situations, this may be a breach of contract.
3. Where would I go for help if my new employer broke the two tier code?
In the first instance you should give your new employer the opportunity to remedy the situation. However, if that fails you should seek help from your trade union. Ultimately the NHS contracting organisation may need to take measures under the terms of the contract to enforce the code.
4. Is my new employer allowed to offer me an alternative set of terms and conditions of service?
An employer may seek to offer you new terms and conditions of service, and generally given the protections of TUPE, you should have a free choice on whether to accept or reject these. In some cases, your trade union may be involved in negotiating a new contract. In such cases your trade union should consult you about any proposed change. If you accept changes these are likely to be irreversible, so you may wish to seek advice before deciding.
5. What are the Six Principles of Good Employment Practice?
Your employer should be aware of the Six Principles of Good Employment Practice, for Government contracting authorities and suppliers. These are voluntary principles supported by the Government that reflect good employment practice. They have been developed in discussion with trade unions, suppliers and public service employer organisations.
6. Where can I find out more about keeping my NHS pension if I transfer out of the NHS?
The New Fair Deal will, if you transfer from an NHS organisation to an independent provider (this includes private sector companies, charities, not for profit organisations, and social enterprises) and continue to be employed on the transferred service or function, enable you to keep your NHS pension.
Staff engagement and partnership working
7. If my new employer has no arrangements for negotiating with trade unions will they be obliged to negotiate collectively with unions once we transfer?
Where a trade union has been recognised by your previous employer for the transferring staff, recognition may transfer to your new employer in certain circumstances. Recognition may not be automatic for new starters, but all providers of NHS services are expected to have regard to the NHS Constitution and show a commitment to partnership working.
8. What if my new employer doesn’t wish to work with trade unions?
You have certain rights embodied in law, for example, the right to belong to a union and the right to be accompanied by your trade union representative at certain disciplinary and grievance meetings. Under the terms of the NHS Standard Contract (where applicable), providers of NHS services must apply the Principles of Good Employment Practice (where applicable) and the staff pledges and responsibilities outlined in the NHS Constitution. The NHS Constitution includes a commitment for the NHS to engage staff in decisions that affect them and the services they provide, individually, through representative organisations and through local partnership working arrangements.
Education, training and workforce planning
9. My current employer is providing me with training identified in my personal development plan. Will my new employer continue that training, and will they use the knowledge and skills framework and provide annual appraisal?
There is an expectation, under the terms of the NHS Constitution, that these or similar arrangements will continue to apply to you following transfer. The NHS Constitution sets out the commitment of providers of NHS funded services to provide all staff with personal development, access to appropriate education and training for their jobs, and line management support to enable them to fulfil their potential.
In addition, the NHS Standard Contract (where applicable) sets out that providers of NHS funded services should ensure staff have 'a full and detailed appraisal (in terms of performance and on-going education and training) using where applicable the knowledge and skills framework or a similar equivalent framework.’
10. Will I still get access to training in a non NHS organisation?
Providers must ensure that staff involved in the provision of the services receive proper and sufficient induction, continuous professional and personal development, clinical supervision, training and instruction. These are contained within the NHS Standard Contract (where applicable) and reinforces the delivery of the staff pledges in the NHS Constitution.
11. Will I get free access to NHS courses?
You will identify any training development needs locally, usually through the appraisal process or ongoing reviews with your line manager. Where training needs are identified and agreed as part of your ability to carry out your day-to-day practice, the expectation is that they are provided free of charge to the individual, be they provided by the NHS or another education provider. Where the development needs are not specifically related to the current post you will need to clarify the access with your line manager.
NHS and non NHS organisations can get access to funding which is for training for the healthcare workforce via their local Health Education England (HEE) offices. HEE make their decisions on investing resources based on local workforce priorities and achieving value for money in providing high quality training for the delivery of that workforce. Funding received by organisations should be based on the training provided by those organisations.
12. Will I be able to continue my student placement at a non-NHS provider?
Yes, non NHS providers will be required to offer student placement opportunities where they are in receipt of HEE funding and properly accredited and where they can provide the necessary supervisory support, as required by the Higher Education Institutions.
13. How should staff be involved in workforce planning issues?
Effective plans for workforce planning and development need to reflect a broad range of views from professionals working at all levels and across the NHS, public health and social care. Staff have a genuine interest in the quality of the service they deliver, and this depends on getting the skill mix and workforce planning right. It is therefore important that staff can be assured that their organisation will be actively involved in local workforce planning processes.
This applies to new providers who must play their part in sharing these responsibilities along with existing NHS providers. It is important that all commissioners and providers of healthcare services are fully signed up to the principle that all providers are actively involved in workforce planning.
HR policies and practices
14. Will my new employer be required to have policies on such matters as equality and diversity, health, wellbeing and safety, work life balance and flexible working, discipline and grievance, whistleblowing and recruitment and promotion?
Under the NHS Standard Contract (where applicable) providers of NHS services must apply the Principles of Good Employment Practice (where applicable); nominate a Freedom to Speak Up Guardian and have in place and promote a code and effective procedures to ensure that staff have appropriate means through which they may raise any concerns in relation to the services.
General employment and discrimination law and individual contracts of employment give staff rights in relation to flexible working, provision of a healthy and safe working environment, to be treated fairly and equitably and not be discriminated against and to raise concerns in the public interest.
In addition, under the NHS Constitution, providers of NHS funded services pledge to:
- provide a positive working environment for staff and to promote supportive, open cultures that help staff do their job to the best of their ability
- provide support and opportunities for staff to maintain their health, wellbeing and safety
- have a process to raise an internal grievance
- encourage and support all staff in raising concerns at the earliest reasonable opportunity, about safety, malpractice or wrongdoing at work, responding to and, where necessary, investigating the concerns raised and acting consistently with the Employment Rights Act 1996
15. Will HR policies form part of my contract of employment?
There is no general assumption or requirement that they do but you should check with your HR adviser if you have any queries about this.
16. What is a primary care contractor?
Currently NHS England or delegated Clinical Commissioning Groups (CCGs) on behalf of NHS England are responsible for commissioning primary care services and can contract with a range of providers to deliver those services. This could, for example, in the case of primary medical care services, be a GP, a group of GPs, a group of other NHS professionals or an independent company. The holders of these contracts are referred to as primary medical care contractors. The types of contracts are described in the orange route section. Many holders of these types of contract are able to offer membership of the NHS Pension scheme to their staff although this depends on the structure of the organisation. You should check with your HR adviser or trade union representative about the arrangements that may apply to you.
There are a range of commissioners who buy services from primary care providers. These include NHS England, CCGs and local authorities (in respect of public health services). However, only NHS England or delegated CCGs on behalf of NHS England can offer PMS, GMS or APMS contracts. Non delegated CCGs and local authorities can offer locally enhanced services or services covered by the NHS Standard Contract.
17. Why am I being compulsorily transferred to another organisation? Can I refuse to transfer?
Your existing employer has a legal responsibility under TUPE to inform and, where appropriate, consult you/your trade union representatives over the reasons for your transfer. You can refuse to transfer but the effect of this may be to terminate your contract of employment without any entitlement to statutory or contractual compensation.
18. Is my new employer allowed to change the area I work in or the type of work I do?
Under TUPE you should transfer with your existing contract and terms of employment. Your new employer should consult you about any proposed changes to your work. If these relate to your contract of employment, then changes would generally need to be agreed with you, or through a recognised trade union if it relates to terms which are collectively agreed with the trade union. You will need to seek advice from your HR adviser or trade union representative.
19. I will be on maternity leave when the transfer takes place. Will I still have the right to return to the same job?
If TUPE applies, then you will have the right to return to the same job (or, in certain circumstances, a suitable alternative job) with the new employer. Any other change would need to be agreed with you.
20. I currently work part time will my employer be able to change my hours?
If your contract of employment provides that you work specific hours on a part time basis then your hours cannot be changed without your agreement. If you have flexibility in the hours you work in your contract, then the same flexibility would apply with your new employer.
21. If I get a job back in the NHS will I keep my contractual continuity of service?
Section 12 of the NHS Terms and Conditions of Services Handbook specifies that ‘when employees who have been transferred out of NHS employment to a non NHS provider return to NHS employment, their continuous service with a new non NHS employer providing NHS funded services, will be counted as reckonable in respect of NHS agreements on sick pay, annual leave and incremental credit.’ The Handbook also clarifies that, any period or periods of employment with employers outside the NHS, where these, at the employer’s discretion are judged to be relevant to NHS employment, can be included in reckonable service for the qualification for/and calculation of NHS contractual redundancy pay.
22. If I transfer to an independent provider, will I still be an NHS employee?
If you transfer out of the NHS to an independent provider (this includes private sector companies, charities, not for profit organisations, and social enterprises) then you would cease to be an NHS employee on the date of transfer.
23. Will the new organisation be guaranteed to receive work from the NHS? If the new organisation does not retain the work at the end of the contract, then what would happen to me?
The terms of the contact between your new employer and the NHS specify whether your new employer is guaranteed to receive work. If the contract comes to an end, then it maybe that you will transfer to the new provider of the service under TUPE.
24. What happens if I am promoted will I still be protected by TUPE?
In certain circumstances your protections will remain. However, if your new employer makes it a condition of the promotion that you accept a new contract of employment then your TUPE protections may end.
25. Can I refuse to do non NHS work for my new employer?
Your new employer would need to consult you on any changes to your work. Where these changes could result in a change to the terms of your contract they would need to be agreed with you or if they relate to collectively agreed terms through a recognised trade union. Advice can be sought from your HR adviser or trade union representative.
26. Do I have to accept changes by my new employer to my contract of employment?
Your new employer would need to consult you about any proposed changes to your contract of employment and they would need to agree these with you or through a recognised trade union if they relate to collectively agreed terms.
27. If I transfer out of the NHS, what be the impact on my revalidation?
Under the NHS Standard Contract (where applicable) it states, that providers must ensure their staff, if applicable, are registered with and where required have completed their revalidations by the appropriate professional regulatory body.
All doctors who require a licence to practise medicine must continue to engage in medical revalidation. When transferring to a new employer, any doctor who is required to revalidate must identify the responsible officer from their new designated body and make arrangements to ensure that all relevant revalidation information, such as their revalidation history and appraisal records, will be provided to their new responsible officer. The doctor should also ensure their GMC online account is updated with their new details.
A guide to identifying a doctor's designated body can be found on the revalidation pages of the GMC website.
Nurse revalidation is the process that all nurses and midwives follow to maintain their registration with the NMC. All nurses and midwives need to be registered with the Nursing and Midwifery Council (NMC) in order to practise in the UK. A step-by-step guide through the process of revalidation can be found on the NMC website.
Information on the registration of health, psychological and social work professionals and the process to enable these professionals to renew their registration can be found on the Health & Care Professions Council website.
Information on the registration of dental care professionals and information on what is required of them to maintain their registration can be found on the General Dental Council website.