Update: Integrated Care Systems (ICSs) – the Employment Commitment

NHS England and NHS Improvement last week published guidance setting out a framework for integrated care systems (ICSs). The guidance Integrated Care Systems: Design Framework sets out how it expects NHS leaders and organisations to operate with their partners in integrated care systems from April 2022. It also includes details of how the transition to ICSs will be managed from an employment perspective, in accordance with the principles set out in the ‘Employment Commitment’.

More detailed guidance on the Employment Commitment has also been published. The guidance sets out the core principles which have been developed to support affected NHS organisations and their staff during the transition process.

What is the Employment Commitment?

The Employment Commitment is a commitment to providing those directly affected by the changes with ‘continuity of terms and conditions of employment (even if not required by law) to enable all affected colleagues to be treated in a similar way, despite a variety of contractual arrangements’. The commitment aims to provide stability for those affected by ensuring that during the transition process:

• significant changes to roles below board level are avoided.
• the impact of organisational change on affected staff is minimised by focusing on the continuation of work and ensuring terms and conditions are not affected.
• opportunities for continued employment for staff wishing to continue to work in the NHS are provided.

The guidance, which will apply to CCGs, NHS England, NHS Improvement and other NHS providers, sets out core principles which it is expected all affected organisations will follow. Affected organisations are required to:

• ensure there is a focus on the day-to-day delivery that supports the restoration and recovery of services.
• avoid undertaking large-scale organisational change programmes throughout the transitional period, wherever possible.
• where organisational change is unavoidable, communicate with affected staff and their trade union representatives at the earliest possible opportunity.
• seek to retain talent from affected organisations (and wherever possible support the broadening of skills and capabilities).
• maximise opportunities for the development of talent by enabling the ongoing evolution and development of roles across the system.
• retain terms and conditions and continuity of service of those staff affected by the transition.
• provide robust and proactive support to those affected by the change.
• communicate and engage with trade union representatives at national, regional, system and place levels to support effective partnership working throughout the transition.
• engage regularly with those affected by the changes and ensure an open, transparent and constructive approach to communication and engagement is adopted.

Transferring staff – commitment to protecting terms and conditions

One of the key principles set out in the Employment Commitment is protecting the terms and conditions of staff transferring to the ICS.

It is expected that all staff transferring to ICSs will transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006, ‘TUPE’ or under COSOP. However, there is a clear commitment to protecting terms and conditions of staff transferring to the ICSs, whether or not that is required by law.

The protections afforded by TUPE, under COSOP and the Employment Commitment will continue to apply post-transfer. It is recognised that ICSs and the ways in which they operate will evolve over time and the guidance makes clear that an ICS is not prevented from making changes to terms and conditions in the future (although they would be expected to follow their own organisational change policy and establish an economical, technical or organisation reason for the change in terms and conditions).

Commitment to communication

A key part of the Employment Commitment is communication. It is clear that organisations are expected to communicate effectively and engage early with affected staff and more widely with local and national trade unions. It is envisaged that effective communication will reduce anxiety and concern caused for individuals during the transition period and contribute towards a more seamless transition. Organisations are encouraged to take the following steps during this period:

• Make available discussions for ‘career conversations’ for all colleagues
• Making arrangements for staff ideas and concerns relating to the transition to be heard; this includes working closely with trade union representatives to ensure that they can provide support to affected staff
• Ensure regular provision of information throughout the transition process

Senior/board level post holders

Significantly, the Employment Commitment only applies to those below board level. It is anticipated that executive/board level roles of the ICS will be created to operate in advance of the establishment of the ICSs and will operate in a shadow form; accordingly, those in senior level and board level roles are likely to be affected by the ICSs board structure and will have to go through organisational change as part of the transition process. Lay member roles and non-executive directors are also not covered by the Commitment.

While the guidance does not apply to senior/board level post holders it does make clear the importance of those individuals receiving appropriate support throughout the transition process. It is intended that the core principles set out above will still be applied; however, it is recognised that support may need to be provided in a different way, given the potential impact on individuals in these roles. A comprehensive range of support packages will be offered to senior and executive leaders, Executive Suite – Our NHS People, to support those affected by the change. Organisations should make details of this package of support available to its senior employees and office holders.

It is recognised that it is crucial, where possible, that talented individuals with significant experience in such roles are retained to work in ICS’s. Where that is not possible, for example in the context of a lay member or other office holder, they are encouraged to explore other similar opportunities in other organisations in the NHS so their wider skills and expertise are retained.

Conclusion

The Employment Commitment provides an overview of the principles which are intended to underpin the transition process to ensure that uncertainty during a difficult period is minimised and appropriate support and stability is provided to the affected workforce. It is clear that there is intended to be a people-centred approach to this transition, with the ambition that as many affected employees will either transfer to ICSs or their skills be retained in the wider NHS.

For affected organisations it is clear that they are expected to maintain a focus on continuation of work and they are specifically asked not to carry out significant internal organisational change and displace people during the transition period. It is likely, however, that some organisational change will be required and where that is unavoidable the organisation must establish clear lines of effective communication with staff and trade unions. Effective communication will be required throughout the transition process with all staff affected by the establishment of ICSs to support a more seamless transition into the new ICS structures with minimum disruption.

Our specialist Healthcare Employment team is experienced in advising public sector organisations on organisational change. If you/your organisation would benefit from support or advice on this challenging area, or the recently published guidance, please do not hesitate to contact us.