Beware these legal pitfalls in the journey to seven day working

The momentum is gathering for seven day working within the NHS. For most members of the public, it comes as a surprise that the NHS is not already a seven day, 24 hour service. The NHS is aligning itself to meet these expectations. In many parts of the country, frontline staff are already working to seven-day arrangements for some services.

However, a whole system change to ensure comprehensive seven-day working arrangements raises a number of pitfalls for the unwary. Here, we take a look at three of those:

Pitfall one: the (in)flexibility of current contracts

Current staff contracts may not have sufficient flexibility to implement effective seven-day working.

The consultants’ contract is a case in point – under the current national consultants contract, consultants can refuse to carry out non-emergency work between 7pm and 7am and at weekends. While the BMA has recognised that emergency services may need to be carried on during this “premium time”, they remain sceptical of the viability of elective services in premium time. National talks are underway but it is unclear when agreement might result in changes to the national contract and what these will be.

‘New models of service will be vital in providing effective seven-day services’

Under Agenda for Change, while employees can be required to work under seven day arrangements, the additional costs associated with unsocial working hours may mean that, in reality, seven day working is not viable.

Requiring employees to work on a 24 hour/seven day basis without their agreement or associated additional payments may mean breach of contract, leading to constructive unfair dismissal claims.

One solution is to obtain agreement to the new working/payment arrangements. For new staff, this may mean employing at the outset on non-national or hybrid terms. Consideration will need to be given to the effect on industrial relations of doing this. For existing staff, it may mean a consultation process which has the potential to result in termination and re-engagement of any objecting staff. While many staff recognise the public support for seven day working, before embarking on change a clear employee engagement and industrial relations strategy should be devised.  

Pitfall two: Scarcity of staff and new models of service delivery

A lack of appropriately skilled/trained staff to provide seven day services may lead to matrix or cross-organisational type structures being created by pooling resources between bodies. Leaving to one side any potential competition issues, this type of collaboration may raise TUPE and potential breach of contract issues. In addition, governance issues may arise as a result of creating new structures with inadequate lines of accountability.

New models of service will be vital in providing effective seven day services, but in planning for these new arrangements it is important to account for the legal implications of change on the workforce.

Pitfall three: Discrimination claims

The NHS quite rightly prides itself on the diversity of its workforce. However, the move to seven day working may lead to more claims for discrimination. For example, there could be the potential for religious discrimination claims where employees of a particular religion are required to work at times which are mandated periods of worship or rest. Female staff may complain that different working arrangements disproportionately and unlawfully impact on them and their child care arrangements. Disabled employees may not be able to change locations/hours to meet new service delivery arrangements. 

Our view is that provided such issues are dealt with sensitively and there is a clear rationale for the changes that are being proposed, these risks should be manageable and potential claims defensible. Again, a proper consultation will be key. Sensitive handling may mean alternative arrangements are considered and appropriate evidence gathered to support the decision that is made.

To deliver truly patient centred care, seven day working for the NHS is not a luxury but a necessity. The legal issues should not prevent that direction of travel. However, they may mean the journey is a bumpier one than it need be for those who have not planned their route map.

Udara Ranasinghe is a partner, employment and pensions group, at DAC Beachcroft LLP