The long-awaited Health and Care Bill 2021 has finally been introduced to parliament. The Bill paves the way for a new system of healthcare (integrated care systems), which is focused on collaborative working between different organisations.
Below, we consider some of the legal and practical employment-related challenges that could arise as a consequence of the introduction of integrated care systems.
- Integration/collaboration – the reconfiguration of services will undoubtedly result in some organisational change. NHS England's employment commitment is intended to provide stability and reassurance, in particular to those staff below board level, however; it is likely that, to some extent there will need to be some reorganisation of the workforce affected by the changes. The possibility of redundancies and managing the transfer of staff under TUPE or COSoP is likely to arise, together with associated considerations of, for example, suitable alternative employment (the employment commitment makes it clear that where possible retaining staff who are displaced within the wider NHS is a priority) and changing terms and conditions of employment.
- Organisational culture – with different organisations coming together often with very different organisational cultures, consideration will need to be given to how those cultures and behaviours can be integrated.
- Recruiting/retaining staff – staffing levels in some healthcare organisations are a significant issue, addressing workforce issues and skills shortages will be critical to the success of ICSs. Organisations may need to consider changing how they engage staff, moving to more atypical ways of working for example via new clinical roles, apprenticeships and shared staff banks. This raises considerations of the contractual terms and conditions upon which staff are to be engaged.
- Flexibility – there may be a need to move staff across systems to support effective service delivery, and this requires a flexible approach to staffing. It is already anticipated by the Health and Care Bill that there will be appointments made across NHS commissioners, providers and/or local authorities. Workforce sharing arrangements will therefore need to be considered, including the practical issues and employment law implications and liabilities which arise in these circumstances.
- Staff engagement/culture – it is recognised that periods of transition and change cause uncertainty and unease for staff members, which can impact upon the way in which services are delivered. Supporting staff in the transition to and following the establishment of ICSs and developing shared values/a collaborative vision will be essential to creating and maintaining an effective workforce. This is a key priority set out in the employment commitment, which also makes it clear that key to ensuring staff are supported throughout the transition process is effective communication and engagement.
- Information governance - system-wide integrated models of working will necessitate sharing employee data and the legal implications and potential financial liabilities (under the GDPR/DPA) if data sharing is not handled effectively can be significant. It is important that these issues are handled correctly and in line with the legislation to reduce the associated legal risks.
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