Facilities arrangements for trade unions and professional organisations: NHSScotland PIN Policy

2 Main Report

2.1 Principles & Values

The key principles underpinning Facilities Agreements are that:

• Boards must put into place local mechanisms, agreed by the Board's Area Partnership Forum (or equivalent), to enable facilities time to be quantified, funded, monitored and to demonstrate adherence to the principles of ensuring that facilities time funding is fair and equitable across the organisation;
• Individuals will not be refused employment nor be subjected to detrimental treatment during the course of their employment on the grounds of their membership of a trade union/professional organisation or activities as a trade union/professional organisation representative; and
• The practice of managers and trade union/professional organisation representatives will be governed by the duties and responsibilities outlined below.

There are specific responsibilities for employers and trade unions/professional organisations in this context:

2.1.1 The responsibilities of trade unions/professional organisations party to Facilities Agreements will be to:

• Elect and accredit representatives in accordance with trade union/professional organisation constitutions;
• Notify the Director of Human Resources ( HR) or equivalent in the local NHS Board of their accredited representatives and areas of responsibility;
• Provide appropriate training for their representatives;
• Ensure their representatives are familiar with the Facilities Agreement provisions and that they comply with these;
• Ensure that the time and resources provided in this context will be used appropriately and cost-effectively; and
• Ensure that representatives give reasonable notice of time off requirements and comply with monitoring requirements.

2.1.2 The responsibilities of NHS employers in this context will be to:

• Fund the costs of facilities time and provide appropriate resources to recognised trade unions/professional organisations;
• Ensure management at all levels are familiar with Agreements and arrangements relating to time and facilities for trade unions/professional organisations;
• Ensure no detrimental treatment of employees as a result of their trade union/professional organisation involvement and that individuals' employment and careers are not prejudiced; and
• Audit the implementation of Agreements.

2.2 Legal Framework

The legislation that provides the right for time off for trade union duties ¹⁰, and protection from detrimental treatment in relation to the carrying out of such duties is mainly contained within the Trade Union and Labour Relations (Consolidation) Act 1992¹¹ .

Other relevant legislation includes the provisions referred to below.

These legislative sections are supported by the ' ACAS Code of Practice - Time Off for Trade Union Duties and Activities'¹², the purpose of which is to aid and improve the effectiveness of relationships between employers and trade unions. The Code applies the spirit of the legislation and offers practical advice to employers and trade unions in the application of the law. The Code provides practical examples of trade union duties and activities. While the Code stops short of being prescriptive, it offers some practical considerations for both employers and trade unions.

2.2.1 Health and Safety at Work etc. Act 1974and related legislation

The Health and Safety at Work etc. Act 1974¹³ imposes obligations on employers to ensure that they meet their responsibilities in terms of health and safety, including consulting with and providing facilities for safety representatives. The Safety Representatives and Safety Committee Regulations 1977¹⁴ deal specifically with paid time off for safety representatives while carrying out their duties or undergoing safety training. The Health and Safety (Consultation with Employees) Regulations 1996¹⁵ place a duty on employers to consult with employees who are not represented by a trade union safety representative and this could be done directly or through an elected employee safety representative. The Health and Safety Executive Code of Practice - 'Consulting workers on health and safety'¹⁶ supports the legislation by providing practical advice.

2.2.2Trade Union and Labour Relations (Consolidation) Act 1992¹⁷

Part III of this Act contains rights in relation to trade union membership and activities, including the following:

• Section 137
  Prevents employers from refusing to employ a person because they are, or are not, a member of a trade union;
• Section 146
  Provides the right for a worker not to be subjected to any detriment by any act or failure to act by their employer for the sole or main purpose of preventing or deterring them from taking part in trade union activities, or penalising them for doing so;
• Section 152
  Provides that, for the purposes of the Employment Rights Act 1996¹⁸, the dismissal of an employee shall be unfair if the reason for it was that the employee had taken part, or proposed to take part, in trade union activities;
• Sections 168-170
  Provide that:
  • Trade union officials have a statutory right to reasonable paid time off to undertake trade union duties and trade union training; and
  • Trade union officials and members have a statutory right to reasonable unpaid time off when taking part in trade union activities.

Specifically:

• Section 168
  Describes the duties for which an employer must permit an official to take time off;
• Section 168 (4)
  Gives the employee the right to present a complaint to an employment tribunal that their employer has failed to permit them to take time off as required;
• Section 168A
  Gives guidance on time off for union learning representatives;
• Section 169
  Provides that employers have to pay employees who take time off under s.168 to perform trade union duties. (There is no statutory duty on employers to pay representatives for time off for trade union activities, but the ACASCode of Practice - Time Off for Trade Union Duties and Activities¹⁹, at paragraph 41, suggests that employers may wish to do so in certain circumstances.);
• Section 169 (5)
  Gives the employee the right to present a complaint to an employment tribunal that they have not been paid properly for the time taken off;
• Section 170
  Provides for trade union officials and members to take time off during working hours for the purpose of taking part in trade union activities.
• Section 171
  Describes the time limits applicable to raising employment tribunal proceedings in respect of the rights to time off for trade union duties and activities;
• Section 172
  Describes the remedies that are available to the tribunal.

2.2.3' ACAS Code of Practice - Time Off for Trade Union Duties and Activities'²⁰

This Code contains useful practical guidance on the application of the relevant legislative provisions, for example:

• Paragraphs 12-15
  Give examples of the types of duties mentioned in section 168 of the Trade Union and Labour Relations (Consolidation) Act 1992²¹;
• Paragraph 38
  Gives examples of the types of activities mentioned in section 170 of the Trade Union and Labour Relations (Consolidation) Act 1992²².

2.2.4Employment Rights Act 1996²³

• Section 61
  Restates the right of an employee representative to take reasonable time off during working hours to perform their functions as such an employee representative or to undergo training for such functions;
• Section 62
  Allows an employee representative to be paid appropriate remuneration for the time taken off.

2.2.5Employment Relations Act 1999²⁴

• Section 10
  Gives employees the right to be accompanied to a disciplinary or grievance hearing. If the representative chosen by the employee is not available at the time proposed for the meeting, the employer must postpone the hearing to the alternative time suggested by the employee, provided that such alternative time is reasonable and falls before the end of five working days after the day proposed by the employer.
• Section 10 (7)
  Specifies that the relevant sections of Trade Union and Labour Relations (Consolidation) Act 1992²⁵ in relation to time off for carrying out trade union duties shall apply in respect of trade union officials accompanying employees to such hearings.

2.2.6National Health Service Reform (Scotland) Act 2004²⁶

This Act amends the National Health Service (Scotland) Act 1978 in a number of respects, including the introduction of a duty in relation to the governance of staff at section 12I.

• Section 12I
  It shall be the duty of every Health Board and Special Health Board and of the Agency to put and keep in place arrangements for the purposes of -

a) Improving the management of the officers employed by it;

b) Monitoring such management; and

c) Workforce planning.

This section aims to ensure that staff governance has equal legislative parity with the rest of the governance framework (clinical and financial governance) within which NHS employers must operate. The Staff Governance Standard²⁷ is the key policy document to support this legislation, and having appropriate facilities arrangements in place will be crucial for NHS employers to be able to make progress in relation to this Standard (in particular, the element relating to staff being involved in decisions that affect them).

2.3 Strategic & Policy Framework

Partnership was the key theme contained within the 1997 White Paper 'Designed to Care,' which set out the commitment of the then Scottish Office to renewing the NHS.

Integral to this vision is to give staff and their trade unions/professional organisations a bigger say in the design and management of the NHS and it is clear that the success of modernisation programmes will be influenced in no small measure by effective relations in the workplace.

The policy framework which underpins facilities arrangements within the NHS is derived from three key documents:

• Staff Governance Standard²⁸
• NHS terms and conditions (see section 25 of the Agenda for Change Terms and Conditions Handbook²⁹)
• NHSMEL(1999)59: Local Partnership Agreements³⁰

2.3.1Staff Governance Standard³¹

As stated above, of particularly relevance in this context is the requirement under the Staff Governance Standard, for staff to be 'involved in decisions that affect them', at the earliest possible stage. This requirement goes beyond historical communication and consultation arrangements.

Furthermore, assessment of organisational progress in relation to the Staff Governance Standard is carried out by the Area Partnership Forum (or equivalent). The role of trade union/professional organisation representatives is key to this process, and incorporated in legislation. It is crucial for this to be recognised by NHSScotland organisations and appropriate facilities arrangements accommodated to meet this obligation.

2.3.2NHSMEL(1999)59: Local Partnership Agreements³²

NHSMEL(1999)59 signalled a new era in employee relations and called for a far greater degree of involvement, co-operation and working together than had previously been seen in the NHS. This MEL clearly stated that partnership is not merely about good employee relations. It is about trust, integrity and openness across all activities in NHSScotland. These values still hold true, and thus embrace the core values of fairness and consistency that are central to the Staff Governance Standard³³.

Partnership is also about the day-to-day issues that affect people in their daily working lives and working practices, as it is recognised as the way of developing consensus around changes to service delivery and provision within the NHS. This implies substantial and sustained commitment by both management and trade unions/professional organisations, and places specific responsibilities on both parties, which can only be achieved by the creation of modern facilities arrangements that go beyond the requirements of both the relevant legislation and NHS terms and conditions.

NHSMEL(1999)59 not only defines the principles and values of partnership working, but also includes a framework through which all stakeholders can fulfil their responsibilities, by working in partnership through the various stages of formulation, consultation and negotiation, implementation and evaluation. This will allow organisations to meet the element of the Staff Governance Standard³⁴ which states that staff are entitled to be 'involved in decisions that affect them' - as long as all parties define and recognise their role and responsibilities within this framework. This framework can only be successful in practice if it is underpinned by robust and resourced facilities arrangements. Facilities Agreements must also take full account of the changing roles/responsibilities of trade unions/professional organisations and managers.

Even in stringent financial times local Facilities Agreements should be seen as an investment, not a source of financial saving. NHSScotland will be well placed to cope with budget pressures by building shared values, including the rights and roles of all staff and patients, robust negotiation and consultation procedures, and the earliest possible involvement of staff representatives in important decisions.

2.4 Scoping Facilities Time

2.4.1 Given the current position outlined in 2.3 above, and to be able to adequately support the partnership arrangements in each NHSScotland organisation, there is a need to adopt a joint approach to the sizing of the role for trade union/professional organisation representatives and providing the resources to facilitate it. This should be viewed as a mutual responsibility of management and staff-side and is the first step in delivering adequately funded facilities time and supporting trade union/professional organisation representatives, managers, staff and patients on whom this will ultimately have an impact. Partnership working involves an additional workload to be shared between management and staff-side associated with delivering organisational compliance with the requirements of the Staff Governance Standard.

2.4.2 Each component part of NHSScotland is unique in its make up, workings and relationships. It is therefore essential that individual employers look at their needs and those of individual trade union/professional organisation representatives to be able to support partnership working to the level required. Organisations should establish a group to explore the various factors that give rise to the need for, and the pressures caused by, the granting of facilities time. This group should include lead HR staff, operational managers and trade union/professional organisation representatives, with the Employee Director and full-time officers included as deemed appropriate within each organisation. This work should be used to define the resources required to deliver the level of facilities time needed to meet the needs of both parties and should be reviewed regularly by mutual agreement.

To assist in this exercise a Facilities Management Tool (individual) is attached as Annex A to the Model Facilities Agreement. This identifies areas of work that individuals may be involved in which may require facilities time. The list is not exhaustive but provides a helpful baseline. This tool should be completed by each representative to allow the organisation to collate information on facilities to reflect the needs of the organisation, estimate requirements for the following year and inform funding allocation for the necessary backfill. NHS organisations are required to demonstrate appropriate investment in facilities arrangements through the Staff Governance self-assessment audit tool.

The following considerations should be made when calculating an individual trade union/professional organisation representative's time requirements:

• Grade and rate of pay of representative;
• Geographical spread of the organisation and travel time;
• Role played by lead representatives and office bearers;
• Preparation time; and
• Backfilling of resultant vacant posts (or parts of posts).

2.5 Managing Facilities Arrangements

Once an organisation has scoped the facilities time required by trade union/professional organisation representatives across the organisation, it must then consider the most appropriate approach to meet these requirements. The approach will depend on a number of factors such as the ease of backfill, numbers of staff in the department and availability of particular skills.

2.5.1 Planned Release

One of the most common approaches is through full or part-time planned release. This allows the organisation to quantify the facilities time that requires to be backfilled/covered. Backfill arrangements can include:

• Fixed-term appointments on a like-for-like basis;
• Fixed-term appointments on a different grade, ensuring the needs of the service are met;
• Use of overtime, additional and bank hours;
• Acting up arrangements from within the service area; and
• Training other staff within the department to undertake additional roles.

The form of planned release will vary greatly depending on the employer, but can be arranged into two distinct categories of staff-side and individual trade union/professional organisation facilities time.

In the case of staff-side facilities time, this tends to be one or two individuals elected or selected by the staff-side on short or long-term planned release from their substantive post.

Individual trade union/professional organisation facilities time is approached in a different manner. In some instances, for example, individual trade unions/professional organisations negotiate an agreement on behalf of their union/organisation, while in other areas all unions/organisations bid for a slice of the facilities time 'cake'.

The main area of concern for management is not usually the amount of facilities time that trade union/professional organisation representatives require, but rather how an individual manager will backfill the vacancy for a planned release, or staff the hours or shifts needed by representatives to fulfil their roles.

Some additional factors associated with the planned release of trade union/professional organisation representatives on a full or part-time basis which should be considered are:

• Preservation of earnings;
• Training (including personal development);
• Line management arrangements;
• End of planned release issues ( e.g. redeployment);
• Replacement costs; and
• Retention of Mental Health Officer or Special Class Status for superannuation purposes.

2.5.2 Ad hoc Release

In some organisations trade union/professional organisation representatives request facilities time as the need arises, and managers authorise this through local procedures agreed by the Area Partnership Forum (or equivalent). In so doing, the range of options available to provide cover is reduced, but include:

• Use of overtime, additional and bank hours;
• Acting up arrangements from within the service area; or
• Training other staff within the department to undertake additional roles.

In these circumstances agreed budgetary arrangements will be in place to enable the manager to draw funding to backfill the positions of those released time.

2.5.3 Support Arrangements

Trade union/professional organisation representatives also require practical support from within the organisation to enable them to undertake their role. As the partnership agenda increases, organisations require to provide support arrangements to ensure success. These support arrangements include:

• Accommodation, including office space, IT (e-mail, intranet, internet access), PCs, phone/fax, storage/filing;
• Internal/external mail;
• Use of notice boards;
• Stationery; and
• Filing/archiving facilities.

It may be that due to the nature and size of the organisation, a mixture of the above suggestions would be appropriate. This remains for the employer and staff-side organisations to determine in partnership.

2.6 Funding Arrangements

Working in partnership has become increasingly important for organisations in the public, private, community and voluntary sectors. The Staff Governance Standard³⁵, enshrined in legislation, raises the people management agenda within NHSScotland to a level equal to that of clinical and financial governance. It is now imperative that NHS Boards and Special Health Boards commit the resources required to implement this Standard.

Trade unions/professional organisations need to provide a supportive network. There is a need to equip people with skills that enable them to make a meaningful contribution to decision-making within partnerships. Enabling individual representatives to balance their substantive role with their trade union/professional organisation role and their home life should increase the quality of their working life. This in turn could lead to increased motivation, greater job satisfaction and improved job performance.

It is the responsibility of each organisation through their Area Partnership Forum (or equivalent) to decide what resources are required and how they will be made available. The section within this report on scoping facilities time provides guidance on how organisations can quantify the amount of resource required.

The Staff Governance agenda has placed an additional workload on partners and this will continue to be so. Given the requirement for the meaningful inclusion of trade union/professional organisations in the Staff Governance Standard, representatives can no longer be faced with the dilemma of attending a meeting, and leaving the ward or department short or having to cancel a clinic. Boards must put into place local mechanisms, agreed by the Board's Area Partnership Forum (or equivalent), to enable facilities time to be quantified, funded, monitored and to demonstrate adherence to the principles of ensuring that facilities time funding is fair and equitable across the organisation. These should reflect the findings of the individual facilities management tool submissions and be controlled by the Area Partnership Forum (or equivalent).

2.7 Indicators of Success

The key to the successful implementation of a Facilities Agreement is to ensure it is widely known and understood, that it is put into practice and that there is a system for feedback and review. To achieve this, consideration should be given to the following:

• Identify stakeholders who will influence the success of the Facilities Agreement and make them aware of the contents and the benefits to themselves and to the organisation;
• Provide all stakeholders with the opportunity to influence the shape of the local Agreement;
• Explain the role of stakeholders in implementation, monitoring and evaluation;
• Give feedback at critical points on the impact of the Agreement on the performance of the organisation;
• Review the Facilities Agreement in light of evaluation feedback;
• Hold joint awareness-raising and training sessions for HR managers, managers and trade union/professional organisation representatives; and
• Ensure a system is in place for recording and monitoring requests for time off.

It is important to publicise the existence of the Agreement and highlight the benefits to each of the stakeholders according to their perspective. Benefits include the following:

• Successful implementation of the Staff Governance Standard³⁶, feeding into the Area Partnership Forum (or equivalent) and accountability review;
• Motivated trade union/professional organisation representatives and managers, committed to working in partnership and the creation of good employee relations;
• An understanding by managers and trade union/professional organisation representatives of what is reasonable facilities time and an appreciation of the value being added through the contribution of the trade union/professional organisation representatives to the performance of the organisation;
• Well trained trade union/professional organisation representatives;
• All the benefits and successes for the organisation of working in partnership;
• A consistent approach to providing facilities time across the organisation;
• Resources to provide support for local facilities requests; and
• Greater commitment and co-operation in managing change fostered through full involvement of local representatives.

2.7.1 Provide all stakeholders with the opportunity to influence the shape of the local Agreement

Development of a local Facilities Agreement should be managed through the Area Partnership Forum (or equivalent) with maximum consultation with stakeholders.

2.7.2 Explain to stakeholders their role in implementation, monitoring & evaluation

• Stakeholders will be expected to be aware of the contents of the Agreement and understand why it is in place. Organisations must be publicly committed to the Agreement;
• Where stakeholders are line managers, they must bring the Agreement to the attention of their staff and ensure contents are understood; and
• Stakeholders must comply with requirements in relation to requesting, authorising and recording facilities time.

2.7.3 Give feedback at critical points on the impact of the Agreement on the performance of the organisation

The Area Partnership Forum (or equivalent) must consider how it can provide feedback to the Staff Governance Committee and the NHS Board which illustrates that the anticipated benefits of the Agreement are being realised.

2.7.4 Review the Facilities Agreement in light of evaluation feedback

Local Agreements should have a realistic review date. Responsibility for ensuring timely review rests with the Area Partnership Forum (or equivalent).

2.7.5 Hold joint awareness-raising and training sessions

Organisations should consider this as an opportunity to bring trade union/professional organisation representatives together with managers to facilitate a greater understanding of their respective roles, common objectives and common/differing problems faced when trying to achieve these objectives. Joint training will encourage a better appreciation of different roles.

2.7.6 Settling differences of opinion

In the event of disagreement over granting of time off, the advice of the HR department should be sought to seek an informal resolution. This may involve a senior trade union/professional organisation representative or full-time official as appropriate and as determined by the trade union/professional organisation. Only where matters remain in dispute should issues be pursued formally under the organisation's Grievance Policy.

2.7.7 Ensure a system is in place for recording and monitoring time off requests

A formal system which records facilities time requests will enable the production of statistics indicating the amount of time spent on different trade union/professional organisation roles and the frequency and reasons for requests not being authorised. It is recommended that this information is presented to the Area Partnership Forum (or equivalent) on a regular basis as part of the review of the Facilities Agreement.

The Model Facilities Agreement includes a template which may be amended to suit local requirements. The list of activities provided on the form is neither exclusive nor exhaustive but is recommended as the minimum data set.

Monitoring arrangements should take into account the requirements of the Working Time Regulations 1998³⁷.

2.8 Monitoring & Evaluation

The following is a list of key criteria by which the implementation of Facilities Agreements can be measured:

• Boards have in place local mechanisms, agreed by the Board's Area Partnership Forum (or equivalent), to enable facilities time to be quantified, funded, monitored and to demonstrate adherence to the principles of ensuring that facilities time funding is fair and equitable across the organisation;
• There is a commitment from the Board, senior managers and Area Partnership Forum (or equivalent) to promote the development and use of the Facilities Agreement;
• There is local awareness and implementation by HR staff and operational managers of the Facilities Agreement;
• There is equity of access for all to the Facilities Agreement;
• There are training and development plans to support local partnership arrangements;
• A system is in place for the Area Partnership Forum (or equivalent) to monitor effectiveness of local Facilities Agreements, including monitoring refused requests, turnover rates of representatives and the inclusion of investment within annual reports/service plan; and
• Compliance with the Staff Governance Standard³⁸, particularly the requirements of the 'involved in decisions which affect staff' and 'treated fairly and consistently' components.