TUPE? No, not TUPE: No protection for transferred NHS workers

About 6 weeks ago I wrote about the Tories’ great NHS pension robbery – the fact that, via the despicable Health & Social Care Act, the government was executing an unprincipled scam that will deprive huge numbers of NHS workers of the final-salary pensions that were part of the contractual promise to them in return for taking the jobs that protect our health and cure us or care for us when we lose it – and to which they contribute for the whole of their time in the NHS.

In doing so, the government is shedding its pension liabilities while getting to keep all the contributions – without question a criminal scam by any sane and reasonable measure. If you want to know more about that, please read the original article.

Unfortunately, the situation is even worse than I thought when I wrote that article.

I don’t know whether it’s some kind of unconscious, masochistic desire to share in the pain and anguish of health workers, patients and the disabled (and so many others!) under this vile government or not, but I decided earlier that I’m going to read the entire Health & Social Care Act, so that I will have seen for myself all the details of the Act whose consequences are already so clearly disastrous.

I wanted to be able to read and parse for myself what it contains – and Lord is it painful. Obscure, repetitive, dense – designed to obscure its real aims and consequences. It’s going to be hard, slow work – which without question is part of the government’s intent. 

But I’ve already come across something which I haven’t seen emphasised in the many articles I’ve read about the Act and its effects. When cross-checking tonight, I did find a few allusions to it, but not (at least so far) anything really emphatic.

Put simply, it’s this: the Health and Social Care Act 2012, forced into law by Lansley with the backing of the Prime Minister – and which new Health Secretary Jeremy Hunt is unquestionably going to implement with obscene gusto – guarantees no protection whatever of pay, pension or conditions for the many NHS workers who are going to find themselves working for the private health providers to whom the government is giving preference in the competition for contracts under the Act.

When one private company takes over another private company or a facility operated by another company, any workers transferred to the new employer have limited protection under the Transfer of Undertakings (Protection of Employment) 2006 regulations, commonly referred to as TUPE. The protection doesn’t last long, as employers have access to a range of excuses for changing pay and terms, but at least initially the pay and terms under the old employer have to be honoured by the new one.

However, under the Health Act, transferred NHS workers don’t even have that protection. Here’s the key text from the paragraph 301, subsection 5, of the Act (emphasis mine):

“A staff transfer scheme may make provision which is the same or similar to the TUPE regulations.“

Everything hangs on that critical, highlighted word ‘may’. There are two possible ways to read it – one of which is the natural sense and one that might be achieved at a stretch. Here are the alternatives:

1) ‘a staff transfer scheme may – but is not obliged to – make provisions similar/identical to TUPE.’

2) ‘a staff transfer scheme may make provisions similar/identical to TUPE (but may not make one that isn’t).’

No.1 is the natural meaning, no.2 is a stretch, and in any case the language doesn’t prevent a legal interpretation of no.1. However, the government has already removed any doubt about the matter.

Unison, one of the main NHS unions, wrote an analysis of the Act for its members. In the process, it asked the DH whether TUPE protections were extended to transferred NHS workers under the Act. This was the response:

“The Department of Health has already made clear that TUPE will not apply for staff that end up working for new providers as a result of changes brought about by the Any Qualified Provider approach.“

‘Any qualified provider‘ is the principle the government has used to open up the NHS to competition law. It means that no preference can be given to NHS providers when deciding how to award tenders for the provision of any NHS service – whether that be cleaning wards, catering – or running an entire service or even hospital. There are a few other scenarios under the Act in which staff might be transferred – but ‘AQP’ will be by far the most common.

So the government has confirmed that staff transferred to a private provider who wins a tender for NHS services will not enjoy TUPE protection. But worse still, by making that decision it is creating precedent that means that the ‘may but doesn’t have to‘ interpretation is recognised as valid and can be applied to pretty much any scenario under the Act.

The full effects of this perverse and venal legislation will only be understood in the outworking over time. But this much (among other things) is already clear: the government has deliberately and completely exposed the hard-working NHS staff of any facility unlucky enough to be transferred to a private company to the full, damaging effects of the greed motive that will surely not honour established pay, terms and conditions when it merely may do so, but doesn’t have to.

The more that is understood about the NHS Act, the clearer it becomes that it must be resisted via every available means. If you care about the NHS, please find out what is being done locally and nationally, and get involved.

And if you want to take a small step right now, please sign the two petitions below to help send a clear message to this government about what most people think of its heartless, immoral and deceitful behaviour:

http://www.gopetition.com/petitions/petition-to-repeal-the-health-social-care-act-nhs-a.html

http://www.gopetition.com/petitions/petition-for-a-motion-of-no-confidence-in-the-uk-coalit.html

Thank you.