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Employment

Work you can bank on

There are advantages and disadvantages for NHS employees who work only when they are needed. New legislation is set to protect them a little more.

The use of zero-hour contracts — especially in skilled professions such as the NHS — has long been controversial. On one hand, the NHS saves money by only paying people as and when they are needed to work, but, on the other hand, the employer has no guara

Source: Alisdair Macdonald

The use of zero-hour contracts — especially in skilled professions such as the NHS — has long been controversial. On the one hand, the NHS saves money by only paying people as and when they are needed to work, but, on the other hand, the employer has no guaranteed access to workers, who do not have to accept shifts if they do not want to (see ‘Your rights under zero-hour contracts’).

This is why zero-hour contracts are often used by employers with a bank of employees to turn to, because there is always likely to be someone available to work. Some contracts contain exclusivity clauses forbidding individuals from working for other employers.

Until now, that is. The government is set to ban exclusivity clauses in zero-hour contracts following its consultation that closed in March 2014, so employees on zero-hour contracts will have the freedom to work with more than one employer. NHS Employers is seeking views on how to ensure that employers cannot avoid this ban (see ‘Have your say’).

Loosening the ties

The move has been welcomed by the NHS Confederation, according to spokeswoman Veronica Parker. “Fair and equitable zero-hours contracts are a useful option when both the employer and employee agree the terms of the arrangement will be beneficial [and] employing organisations do not support contracts containing an ‘exclusivity clause’, tying the individual employee to one employer only, unless both parties agree that this arrangement is beneficial,” she says.

For most staff bank members, this will give them more options when it comes to prospective employers. There are also other entitlements, according to the Department of Health (DH): “NHS organisations make their own employment decisions about their staff. It is for an individual organisation to devise the contract of employment used for bank workers [but] those that sign up to these agreements are entitled to receive payment in lieu of annual leave, statutory sick pay, access to the NHS Pension Scheme and access to statutory maternity pay.”

The DH does not collect information on the types of contracts used by NHS trusts, nor on the number of pharmacists or pharmacy technicians, pre-registration trainees and pharmacy students currently employed as bank staff. However, there is a long history of using bank employees within the NHS, as David Miller, a chief pharmacist, explains: “There has been a tradition of bank staff, mainly in nursing, but we are increasingly seeing this with pharmacists, especially junior pharmacists and pharmacy students. Like locum work, it suits some employees in that it provides flexibility and an opportunity to manage a work-life balance, and from an employer’s perspective it allows them to increase resources at short notice utilising an existing trained workforce.”

Flexibility all round

Bank staff in the NHS will usually be employed on similar terms and conditions to permanent staff, with NHS employers providing access to induction, mandatory training, and undertaking appropriate checks and references.

“The advantage to the employer is availability of staff at short notice without existing staff having to work excessive hours to maintain services,” says Miller, who works at City Hospitals Sunderland NHS Foundation Trust. “It is cheaper as there is no middle man, quicker as you can contact staff immediately, and they are more reliable than agency staff as you have staff members who are aware of local processes, have been trained to the local standards and, most importantly, are known to the staff whom they will work alongside.”

For Amina Ali, a bank clinical specialist pharmacist at North East London NHS Foundation Trust, the advantages for the bank staff member are clear, with few differences in the terms between different trusts.

“You are not required to work a specific number of hours and you are not obliged to accept all offers for hours. If you work across sites, you are also able to decline specific locations as well,” she says.

“This gives me a huge amount of flexibility — for example, if I want to leave early I can, which would be an issue for permanent staff but is easier to accommodate for bank staff. In addition, I do not work during school holidays and I do not have to apply for annual leave or time off for appointments and so on, so in that respect being bank staff is ideal. You also get paid holiday for every few hours you accrue, which may be different between trusts, but it means you get extra money once you have done the qualifying hours.”

Your rights under zero-hour contracts

According to the employment arbitration service Acas, the term ‘zero-hour’ is not defined in legislation, but is generally understood to be an employment contract between an employer and a worker, which means the employer is not obliged to provide the worker with any minimum working hours, and the worker is not obliged to accept any of the hours offered.

Where there is a dispute over this, an employment tribunal may decide for themselves what contractual relationship exists between employer and worker and any associated employment rights, including enhancements such as accruing the right to take maternity leave or pay and the right to request flexible working.

To learn more, call the Acas Helpline on 0300 123 1100 or go to http://www.acas.org.uk/zerohours

Help at hand

Employing staff members in a bank also allows organisations to retain key individuals who want to change their working arrangements, and gives pharmacy students valuable patient contact. “At Sunderland we have a number of previous employees who have undertaken career changes, who we do not want to lose but they can no longer commit to regular hours,” says Miller. “However, they can support the service during holidays or at weekends on a mutually beneficial basis.”

“Our close proximity to the school of pharmacy also allows us to employ a number of students on zero-hour contracts,” adds Miller. “During periods of exams or heavy academic workload, they can reduce hours of working, and during holidays or when we have specific projects, they can increase hours should they desire. They are paid the same, including any enhancements, as regular staff on the same band. These posts are popular and have the advantage to students of providing reasonably paid patient-facing work experience.”

Like the NHS Confederation, Miller is also in favour of the ban on exclusivity clauses in zero-hour contracts, which he says are a “Victorian concept that have no place in modern employment practice and should be totally banned”.

All contractual relationships, he suggests, should be fair and equitable with both parties having equal rights under the arrangement.

“Zero-hour or bank staff members should be and are the exception in the NHS as we often seek a regular workforce that we can develop in the role, but are vastly superior to the use of agencies, reducing the burden on the existing workforce in periods of high demand,” he says.

On balance

For Ali, the only obvious disadvantages are mostly with regards to stability: “For example, you do not qualify for maternity or paternity leave, and there is no guarantee of hours so you may not get any work for long periods. The hours that are offered depend on the availability of the rest of the team and the needs of the service. The hours that you are offered will also usually depend on your own availability, so it may be unpredictable in that way.”

Despite this, working as bank staff works for her. “I think it’s good for people like me with young children because I can be at home when I need to be and work when it suits me,” she says. “However if my children were a bit older, I think that a permanent contract would offer better stability, especially if you have regular bills and financial responsibilities.”

On balance, Miller thinks that bank staff and zero-hour contracts can work well for all parties involved, if handled correctly on both sides. “Like all recruitment processes, if you get the right staff with the right support working in the right environment, then they are no different to regular staff,” he says. “If there is equality, respect and fairness by the employer then that is usually reciprocated.”

Have your say

The Department for Business, Innovation and Skills is now consulting on a range of actions that the government could take to tackle potential avoidance of the proposed exclusivity ban in zero-hours contracts, and possible routes of redress for the individual.

NHS Employers will respond to the consultation on behalf of employers and welcomes any views from NHS organisations particularly on:

  • The likelihood and circumstances in the NHS of employers seeking to avoid a ban on exclusivity clauses.
  • Whether the government should do more to deal with potential avoidance, and how that might be best achieved.
  • How potential avoidance could be dealt with and the consequences for employers who circumvent the ban on exclusivity clauses.

You can email your views to max.liversuch@nhsemployers.org or access the consultation at https://www.gov.uk/government/consultations/zero-hours-employment-contracts-exclusivity-clause-ban-avoidance 

Citation: The Pharmaceutical Journal DOI: 10.1211/PJ.2014.20066895

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  • The use of zero-hour contracts — especially in skilled professions such as the NHS — has long been controversial. On one hand, the NHS saves money by only paying people as and when they are needed to work, but, on the other hand, the employer has no guara

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