Provider collaboratives workforce challenges

Since July 2022, all NHS Trusts providing acute and mental health services have been required to join a ‘provider collaborative’ (PCs). Wider NHS services such as community and ambulance trusts, as well as non-NHS providers (including voluntary, community and social enterprise (VCSE) sector organisations or independent providers), have also been encouraged to take part, where this will benefit patients and the providers and systems involved. The establishment of PCs gives providers the opportunity to work together to combine resources to support workforce capacity and help to address the challenges faced by an increasingly under pressure healthcare system. 

This article considers the practical ways in which PCs can support workforce capacity and create a shared workforce. In practice it has been suggested this might involve the joint employment of staff across more than one organisation. The status of joint employment, where one individual is employed by two employers for the same role, has recently been considered by the  Employment Appeal Tribunal in the case of Fire Brigades Union v Embery [2023] EAT 51. The outcome of this case and implication for joint employment in the healthcare service is considered further below.  

How can provider collaborators support workforce capacity?

One of the ways PCs can support workforce capacity is by sharing resources, expertise, and staff across organisational boundaries. The following are examples of how PCs can work to support workforce capacity:

1. Shared workforce planning: PCs can work together to identify workforce needs and develop joint workforce plans. This can include sharing data on workforce demographics, training needs, and vacancies across organisations. By pooling their resources, PCs can develop more comprehensive and effective workforce plans that address the needs of the local population. 

2. Joint recruitment and retention initiatives: PCs can work together to attract and retain staff in the local area. This can include joint recruitment campaigns, targeted training and development programs, and shared opportunities for career progression. By working together, providers can create a more attractive and supportive working environment for staff, which can help to address recruitment and retention challenges currently faced in the healthcare system.

3. Shared learning and development: PCs can provide opportunities for staff to share learning and development opportunities across organisations. This can include joint training sessions, peer-to-peer learning networks, and opportunities for secondments and placements. By sharing expertise and best practice, providers can improve the skills and knowledge of their workforce and build a more resilient and adaptable workforce.

4. Flexible working arrangements: PCs can work together to offer flexible working arrangements for staff, such as job sharing, flexible hours, and remote working. This can help to improve work-life balance for staff and make it easier for them to balance their work and caring responsibilities.

Overall, PCs can provide a range of benefits to the workforce, including access to shared resources and expertise, opportunities for career development, and a more supportive working environment. By working together, providers can build a more resilient and sustainable workforce that is better able to meet the needs of the local population.

Creating a shared workforce – practical considerations 

PCs intending to enter workforce sharing arrangements (whether for people, resources or information) should consider the practical ways in which such arrangements can be formalised. One way of doing so is with the introduction of a ‘portability agreement’. This is a formal agreement between the organisations (and in some cases the employee) which allows for the efficient transfer of people and resources between them. 

Portability agreements have already been used successfully in the NHS and other areas more widely, including local authorities, social care, and voluntary organisations. The following includes examples of how portability agreements are being utilised:

• Kings Health Partners have a passporting system between several trusts and their university partner, to allow all members of staff to work at other organisations. 
• South Yorkshire, Mid Yorkshire and Derbyshire have inter-trust on-call rotas. 
• Trusts in West Yorkshire have an agreement which recognises the transferability of statutory and mandatory training. Staff are only required to undertake specific training requirements of the organisation they are moving to.
• Secondments are frequently used in the NHS. The employing organisation will remain the employer of a seconded employee who then provides his/her services to the host.
• For junior doctors in training portability agreements in various formats are commonly utilised to facilitate the efficient rotation of junior doctors, and their training information, through training programme placements. In this context formal arrangements are in place across NHSE, Lead employer organisations and host placement providers.
• A licence to attend is used when an individual is employed by an organisation and is given access to attend a host for a limited purpose.
• It is possible to issue an employee with a joint employment contract by two employing organisations.

Joint Employment – what does the recent decision in Fire Brigades Union v Embery [2023] EAT 51 mean for PCs considering implementing a joint employment relationship?

Joint employment is a situation where two or more legally separate organisations employ an individual at the same time. They are both the legal employer of the employee at the same time.

It is different from a traditional secondment arrangement or embedded staff model in which an organisation agrees to send its employee to work at another organisation, but it remains the employer of the seconded or embedded employee.

Joint employment has been commonly used in the NHS and its benefits as a potential flexible workforce arrangement in PCs is clear; however, the concept of joint employment has recently been considered by the Employment Appeal Tribunal in the case of Fire Brigades Union v Embery [2023] EAT. The case leaves some uncertainty about the status of joint employment and the circumstances in which it may now be appropriate. 

Fire Brigades Union v Embery [2023] EAT 51 

Background

The Claimant was a longstanding employee of London Fire Brigade (LFB). In 2008, after the Claimant was elected as a regional official of the Fire Brigades Union (FBU), LFB released him from his firefighting duties under an agreement between LFB and the FBU. This agreement allowed the Claimant to devote himself full-time to his union duties and in return the FBU agreed to reimburse the Claimant’s salary to LFB. 

In 2019, the Claimant received a ban on holding office due to an alleged breach of FBU’s rules. As a result of this ban, the Claimant ceased work for the FBU and brought various claims in the employment tribunal, including unfair dismissal, on the grounds that he was jointly employed by FBU and LBF. 

At first instance, the Employment Tribunal determined that the Claimant held employment status with both FBU and LFB (i.e. joint employment). 

FBU appealed and the appeal was successful;  the EAT found that the concept of joint employment could only occur in unusual or exceptional circumstances.

Legal analysis 

There is a long-standing principle that an employee cannot have two employers. The Claimant in this case sought to rely on the principle established in  Prison Officers Association v Gough and Cox (Gough) (2009) that an employee could hold jobs with separate employers at the same time (if the jobs are compatible with each other or the employee is employed by a consortium of several employers acting jointly).

The EAT in Fire Brigades Union v Embery ‘respectfully doubted’ the tribunal’s findings in Gough on the grounds it was a case related to vicarious liability and this case was not. In Gough, the EAT recognised that there may be wholly different policy reasons for allowing dual employment in vicarious liability claims which were not applicable to the circumstances of this case.

Conclusion

The EAT considered that joint employment would only be established in ‘unusual or exceptional’ circumstances which warrant a departure from the general principle that one employee cannot simultaneously have two employers (Patel v Specsavers Optical Group Ltd). The EAT concluded that without any ‘convincing reasons’ to indicate a need to recognise dual employment, the Claimant did not have two employers. 

What does this mean for joint employment in the NHS and healthcare service?

On first glance, the recent decision by the EAT appears to leave the issue of joint employment in a state of uncertainty. It appears that joint employment by two employers for the same role, hours, and duties will only be possible in exceptional cases.  However, this case involved joint employment in the context of union work, and notably there was no contractual agreement between the Claimant and the union. 

It appears in appropriate circumstances joint employment is likely to still be permissible and the existence of a formal agreement setting out the clear intention between the parties to engage in dual employment and the arrangements for that will be an important consideration. 

If you have any queries about the content of this article please contact one of our employment experts.