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The Equality Act 2010
The NHS has produced guidance on The Equality Act 2010: Employment Considerations for the NHS
Potential providers should be aware that the Public Sector Equality Duty (PSED) applies both to public bodies (listed in Schedule 19 of the Equality Act 2010) and to others carrying out public functions. A public function is a function of a public nature for the purposes of the Human Rights Act 1998 and some of the functions under this Framework would fall into that category.
Third and private sector organisations are also subject to the PSED when carrying out activities that constitute public functions and become, for the duration of the contract, a public authority with their own liability, but only for those activities, not the rest of their work. The public sector equality duty cannot be legally delegated, however where functions are transferred the duty will apply in relation to those functions to the body that exercises those functions.
As part of this Framework potential providers shall need to establish that they are competent, capable and have capacity to deliver against the PSED in respect of their functions. Whilst the Customer may still have obligations, these duties are non derrogable in law and explicitly apply to all contracts, regardless of value.
Please view details of all supplier changes in the below document:
NMNC supplier suspensions (Published 27 February 2012)
NMNC supplier changes (Published 16 February 2012)
UNDERSTANDING NHS EMPLOYMENT CHECKS
NHS Employers has produced a How to: understand employment checks for agency staff guidance document, which is available from the enclosed website:
http://www.nhsemployers.org/PlanningYourWorkforce/Flexible-workforce/Agencyworkers/Reducingyouragencystaffingcosts/Howtoguides/Pages/employmentchecksforagencystaff.aspx The document itself is available from http://www.nhsemployers.org/SiteCollectionDocuments/UnderstandingEmploymentChecksfinal9Nov.pdf
Whilst it is recommended that latest NHS Employers Agenda for Change arrangements for general and public holidays over the Christmas and New Year holiday period should similarly apply to agency workers supplied to authorities under this framework agreement, any adjustments for unsocial hours to the basic hourly rate of pay should be as appropriately agreed with the authority.
Further information is available from Annex Y – Arrangements for general and public holidays over the Christmas and New year holiday periods principles, within the NHS terms and conditions of service handbook
17 February 2012 - Health: non medical, non-clinical temporary staff - notification of procurement activity
Government Procurement Service will shortly be undertaking a procurement to establish a replacement framework agreement to supply temporary non medical, non-clinical staff. The framework will be predominantly for NHS bodies but will also be available to other public sector organisations throughout the UK. It will provide cover for all Agenda for Change bands and job profiles
The standards of supply will be in accordance with all relevant legislations, regulations and guidelines pertinent to the provision of the services and as required by NHS bodies and other public sector organisations, including but not limited to Department of Health and NHS Employers requirements for safer recruitment and employment checks.
It is our intention that this framework will become the recognised route of choice for the provision of temporary non medical, non-clinical staff. It will be national in scope and will be divided up into lots allowing customers to identify which supplier best meets their requirements, via a call-off or a further competition exercise.
Our current temporary non medical, non-clinical staff framework agreement will remain available to all NHS bodies and other customers across the UK public sector until 31 December 2012. Further information about the current provision of the services under this framework can be found here.
16 September 2011 - Agency Workers Regulations - what this means for the Non Medical Non Clinical framework
Overview
- We will be publishing on the NMNC web pages an amended “Pay Rates” matrix reflecting AfC 2011 pay rates and incorporating the WTR increase from 12.07% to 15.56% this matrix will be clearly identified as “Pay Rates +12 weeks”
- We will be applying minimum wage increase to pay point A band 0 on both the existing “Pay Rates” doc and the newly created “Pay Rates +12 weeks” docs
- We will be making changes to the pricing modules for NMNC to reflect AWR total charges – there will be (2) two pricing options available for customers
- It is envisaged that the pricing will be available in two ways, the current prices
- (incorporating the minimum wage increase) and the 2nd pricing option will be available to reflect WTR pay increases effective after 12 (calendar) weeks
- Supplier fees/margins will remain the same and will not be affected by the AWR implementation
- Please note it is the customers prerogative to choose to adopt the AWR pricing from Day 1
- It is the suppliers responsibility to obtain this information at the time of customer instruction to source work seekers – you are urged to obtain this instruction in writing from the customer before directly applying AWR rates
- The overall expectation for NMNC suppliers is that in the absence of the specific customer instruction to apply AWR from Day 1, then the supplier should automatically apply the default pricing until the qualifying period is met.
The Agency Workers Regulations shall come into force on 1 October 2011. The purpose of this guidance is to further assist NHS bodies currently hiring agency workers through our national framework agreements for the supply of temporary clinical or non-clinical staff, in their initial understanding of their introduction. Detailed guidance about these Regulations is currently available from the Department of Business, Innovation and Skills (BIS) website.
Quick Start Guide
Enclosed within this Guidance is the following Quick start guide:
New entitlements for agency workers from 1 October 2011
The information below outlines the key changes and new responsibilities:
New Entitlements
Day 1 rights for all agency workers: If you hire agency workers, you must ensure that they have they can access your facilities (such as canteen, childcare facilities, etc) and can access information on your job vacancies from the first day of their assignment.
After 12 weeks in the same job: The equal treatment entitlements relate to pay and other basic working conditions (annual leave, rest breaks etc) and come into effect after an agency worker completes a 12 week qualifying period in the same job with the same hirer. After completing the qualifying period, pregnant agency workers will now be allowed to take paid time off for ante-natal appointments during an assignment. It is not retrospective and for those agency workers already on assignment, the 12 week qualifying period will start from 1 October 2011.
What this means for you?
If you are a hirer of agency workers: If you are an employer and hire temporary agency workers through a temporary work agency, you should provide your agency with up to date information on your terms and conditions so that they can ensure that an agency worker receives the correct equal treatment, as if they had been recruited directly, after 12 weeks in the same job. You are responsible for ensuring that all agency workers can access your facilities and are able to view information on your job vacancies from the first day of their assignment with you.
If you are a ‘temp’ agency worker: From 1 October 2011, after you have worked in the same job for 12 weeks, you will qualify for equal treatment in respect of pay and basic working conditions. You can accumulate these weeks even if you only work a few hours a week. Your temporary work agency is likely to ask for details of your work history to help establish when you are entitled to equal treatment (separate guidance is available for agency workers on direct.gov website).
If you are a temporary work agency: If you are involved in the supply of temporary agency workers, you need to ask the hirer for information about pay and basic working conditions (when it is clear that the agency worker will be in the same job with the same hirer for more than 12 weeks) so that they are treated as if they had been directly recruited to the job.
In addition to the information widely available from BIS, NHS Employers – in conjunction with the Recruitment and Employment Confederation - has made available ‘How to’ guidance for NHS bodies. This guidance, and additional information, is available from the NHS Employers web site
How does this affect the national framework agreements for the supply of temporary clinical and non-clinical staff?
Principles of providing agency workers with the entitlement to the same or no less favourable treatment, as if they has been recruited directly by the hirer, are already incorporated within the national framework agreements for the supply of temporary clinical and non-medical, non-clinical staff. Having been tendered competitively on this basis and where compliance with the regulations already applies, then the Government Procurement Service does not propose to amend the relevant Framework Agreement’s agreed Contract Prices, including the basic hourly rates of pay to the agency worker.
Any questions that may arise in relation to comparator individual basic hourly rates of pay when that agency worker has completed the 12 weeks qualifying period should be resolved with the hirer directly as part of that individual supply contract.
There is however a clear discrepancy between the current statutory Working Time Regulations (WTR) - which allow for a total of 28 days paid holiday per year - and NHS Employers Agenda for Change annual leave entitlements upon appointment of 27 days paid holiday per year plus 8 days Public Holidays. To meet the 12 weeks qualifying service requirements, the agreed Contract Prices under our framework agreements shall be amended to include for 35 days paid holiday, by amending the WTR payment element from 12.07 percent to 15.56 percent.
In addition where relevant percentage uplifts for unsocial hours adjustments may currently differ from existing Agenda for Change rates, then to meet the 12 weeks qualifying service requirements, these too will be amended to reflect equivalent Agenda for Change provisions.
Please be advised that a new set of agreed Contract Prices for those agency workers completing the +12 weeks qualifying service period will be provided through the NMNC web pages and pricing tools.
This information has been provided to assist you in managing the forthcoming regulations. Any specific issues that may arise should be dealt with either through your own HR Department or by seeking local legal advice.
Further Information
For your further information, NHS Employers have published a guide on “How to meet your responsibilities under the new Agency Worker Regulations” for the NHS.
We have also provided a link from NHS Employers on “How to manage VAT refunds for temporary staff in the NHS”
25 January 2011 - Healthcare Locums Plc
“A regulatory notice has been issued by Healthcare Locums Plc on 25 January 2011 to the AIM London stock exchange regarding Healthcare Locums Plc.
Healthcare Locums Plc, and companies within the group, are suppliers on our framework agreements. Companies within the group referring to this framework agreement are as described below:
- HCL Healthcare Ltd
We are monitoring this situation, and any further announcements issued regarding the situation shall be made available through this web page. Should you have any additional queries, please contact the Customer Service desk on 0345 410 2222. Thank you for your assistance on this matter and we shall keep you informed.
20 January 2011 – The Temporary Clerical & Administrative Staff framework agreement, reference 06/GEN/SS/1030, will expire on 31 May 2011. Aimed primarily at central government, customers are being advised that this will not be renewed and the NMNC framework is suggested as a practical alternative.
15 October 2010 – Update to ‘Suppliers - prices and details’
Each of the tools and spreadsheets within this section have been updated to reflect the changes in available suppliers, their ability to supply and the prices applicable. For customer use only - we urge you to use them to identify opportunities to review sources and costs, especially where there is a perceived difficulty in selecting suppliers from the specialist and SME options available and where users mistakenly believe the expired PaSA frameworks are still valid.
30 September 2010 Occupational Health checks – Equality Act 2010
As from the 1st October, the Equality Act 2010 slightly changes the procedures required in the framework. Although the requirements remain the same, the Employment Business cannot request OH clearance until after the supplier’s registration processes have been completed but must still ensure compliance before placement.
27 July 2010 – NHSLA Risk Management Standards for healthcare organisations update
As part of our working relationship with the NHS Litigation Authority (NHSLA),we have recently contributed to the development of a Frequently Asked Question (FAQ) in respect of their Governance Risk Management Standards for healthcare organisations, when using employment businesses appointed to our Framework Agreements for the supply of temporary staff.
The FAQ contributed to can be viewed here.
Further information about the Risk Management Standards for healthcare organisations can be obtained here.
22 July 2010 – Revised NHS Employment Check Standards published
Developed with key stakeholders including the Department of Health (DH), the Centre for the Protection of the National Infrastructure (CPNI), and employers in the NHS; the NHS Employment Check Standards includes all pre-appointment checks that are required by law, those that are mandated by DH policy and those that are required for access to the NHS Care Record Service.
Originally published in March 2009, these standards were further reviewed in December 2009 in consultation with key partners to assure their fitness for purpose. The revised standards were published in July 2010 and are embedded within the framework agreement. Further information is available here
13 July 2010 – Updated information and new tools available
Updated supplier information and improved selection tools are now available through the ‘Suppliers – prices and details’ link.