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Healthcare Agency Workers Loss of Employment Rights

Are we sleepwalking into an employment rights disaster?

The power of the trade unions was decimated during the reign of Margaret Thatcher but surely we do still have employment rights and protection, don’t we? Well, if Gary Snart of Health Trust Europe (HTE) answered that question, he would apparently answer with an emphatic, “no”!

Here’s the problem. The NHS is critically short of staff and in order to keep the NHS afloat whilst trying to plug the disastrous hole in its resources, it relies on hard-working agency support staff to work alongside NHS employees, delivering the same high levels of compassionate and attentive care to patients. But whilst we as patients would not be able to tell the difference, if you’re an agency worker, the differences couldn’t be starker.

In order to get paid, most healthcare agency workers through an umbrella company; a company that pays them but, very importantly, also employs them.

The NHS and its trusts do not want to provide the agency workers with employment rights, so umbrella employers step in to provide them. This undesirable and unfortunate consequence of the way the NHS is managed is not likely to change anytime soon so, for us all to benefit from healthcare in times of need, we have to rely on our hardworking agency workers. The NHS could not function without agency workers, so they should not be treated as second class workers, which will be the consequence of the proposed changes.

HTE, one of the major players in deciding how our NHS is run, seems bent on using its huge corporate power to return us to Dickensian times, all in the name of “compliance” and somehow overlooking the inconvenience of the law; specifically the employment rights and protection of our hardworking and underpaid healthcare workers.

Although so far no more official than via LinkedIn messaging, it seems on the cards that in the next month or so HTE will force many thousands of healthcare agency workers to resign and find a new umbrella employer if they want to continue working and being paid in the same role. This will be done with no regard whatsoever for the employment rights that they have earned with their current umbrella employer.

Why is this about to happen? In simple terms HTE, which has the financial control over whether hundreds of recruitment agencies across the country can continue to recruit for the NHS, are going to make them only deal with umbrella companies that are accredited by the FCSA or Professional Passport.

So, why do doctors, nurses and other healthcare workers need to be worried? For agencies to continue being paid, they will need to force the workers to resign from an umbrella employer that is not accredited and obtain employment with a new one that is. The consequences for the workers will be:

  • Loss of employment protection rights to safe guard against unfair dismissal that take two years to accrue.
  • Unused holiday entitlement will be lost.
  • Pension contributions will cease until with a new employer for 3-6 months.
  • Ending an employment relationship that they are perfectly happy with and moving to an unhappy one.

And, depending on individual personal circumstances, loss of accrued rights and entitlement to:

  • Maternity leave and leave
  • Paternity leave and pay.
  • Not to be suspended on maternity grounds
  • Antenatal appointments.
  • Parental leave and pay
  • Adoption appointments, leave and pay
  • Flexible working
  • Time off for dependents

Can employment agencies legally do this? Absolutely not! How agencies conduct business is governed by The Employment Agencies Act 1973 and The Conduct of Employment Agencies and Employment Businesses Regulations 2003 (the Regulations), with the laws enforced by The Employment Agencies Standards Inspectorate (EAS). By Regulation 5, an agency is absolutely not allowed to tell any candidate that he or she must use any of its ancillary services (most commonly CV writing and interview techniques etc) for it to assist with finding a suitable role or to continue in one.

Importantly, an “ancillary service” also includes advice and guidance (which cannot possibly be impartial given the financial interest that underpins it) on the use of an umbrella employer that suits the needs of the agency. Such conduct extinguishes workers freedom of choice and dismisses the purpose and intention of the Regulations.

So, in the brave new HTE world, for an agency to continue being paid (note the financial self-interest), it will have to dictate to its candidates that they must choose an umbrella employer, which is likely to be on its preferred supplier list, that is accredited. In simple terms, such conduct by an agency is against the law. If any agency candidate is forced along this route, they must complain to the EAS.

The EAS will investigation and take action through the criminal court system against agencies that flout the rules. The EAS can apply to an employment tribunal to ban someone from running, or being involved in the running of an employment agency or employment business. In 2018 there were 11 individuals banned and that figure is understood to be significantly increasing for 2019. According to the most recent EAS annual report covering 2017 to 2018, it received 1,261 complaint during the period with complaints from healthcare sector forming the greatest number and 11 prosecutions in the pipeline that could result in criminal convictions, fines and compensation orders.

Healthcare workers and their representatives must make a stand now as the proposed changes will come in very quickly, as will the imminent loss of rights of tens of thousands of individuals.

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