16 / 2 / 2009 4.11pm
Historically it was questioned whether Deaneries may fall under the remit of the Employment Agencies Act 1973, as their role in the recruitment of doctors to specialty training could be viewed as that of an 'employment agency'. In 2008 the BMA reported the English deaneries for allegedly breaching their duties under the Act during recruitment to specialty training programmes.
The Department for Business Innovations and Skills (BIS) was asked to clarify the legal position and broker a deal which would satisfy all parties. The outcome was the development of a Recruitment Code of Practice for postgraduate medical training which was published in February 2011.
What is the Employment Agencies Act?
The Employment Agencies Act and regulations under it are designed to regulate employment agency activity and protect clients (work seekers) from exploitation.
The Act requires that agencies let work seekers know the main terms and conditions of any employment they may be introducing them to. There is also provision to stop them subjecting a work seeker to any detriment should they take up another offer of employment or register with another agency.
Does the Act apply to deaneries?
Legal opinion was sought on whether the Act applies to deaneries in England. It was identified there was most likely an anomaly that arose when deaneries' status changed from being University bodies to part of Strategic Health Authorities in 2006.
Section 13(2) of the Act defines employment agencies, and provides that:
"For the purposes of this Act 'employment agency' means the business (whether or not carried on with a view to profit and whether or not carried on in conjunction with any other business) of providing services (whether by the provision of information or otherwise) for the purpose of finding persons employment with employers or of supplying employers with persons for employment by them."
As deaneries carry out the advertising, shortlisting and interviewing for medical training programmes and then, following the acceptance of offers of training programme places by doctors (work seekers), pass details of those doctors selected to the employer(s) (hirers) to make individual offer(s) of employment, the Act may apply. The EAS Inspectorate cannot decide whether the Act applies to deaneries as only the courts can determine this.
What obligations does the Act impose?
- To set out at the outset and agree with work seekers (doctors) their terms of business, and set out any fees that may be payable
- On introducing a work seeker (doctor) to an employer to set out some key information about the employment the employer is offering, including: the employer, date of commencement, duration, grade, location and hours, notice period, experience and qualifications necessary, expenses payable, minimum remuneration (note this is not the individual's actual remuneration).
- Not to use information gathered solely as part of their recruitment activity for other purposes.
What advice were deaneries given?
It was not clear whether the Act applies. Deaneries were advised by DH that they should review their procedures on the basis that it does and were advised to take three steps:
- At the outset of recruitment provide a statement of terms of business to applicants and ask the applicant to accept them, whether by requiring explicit response or advising that non-response will be deemed acceptance.
- At the point of allocating a doctor to a training placement (ie at the point at which the Deanery (agency) introduces the doctor (work-seeker) to the employer (hirer)) to provide the main terms and conditions of service and other matters directly to the doctor. Deaneries cannot, as now, leave this solely to the employer, even though the employer will need also to provide the usual contractual documentation within eight weeks of starting, in line with the Employment Rights Act 1996.
Implication for employers: employers needed to provide deaneries with more detailed information about each training post being offered as early as possible to avoid delays in recruitment.
- At the time of each subsequent change of employer (hirer) within a rotation the deanery will also need to provide the doctor (work seeker) with the main terms and conditions of service and other matters directly to the doctor (as if this was a new hiring).
Implication for employers: employers needed to share information with deaneries when requested.
What information must deaneries supply to doctors?
The legislation sets out that this should include:
- the identity of the employer (hirer) and, if applicable, the nature of their business
- the date on which the employer (hirer) requires the doctor (work-seeker) to commence work and the duration, or likely duration, of the work
- the position which the employer (hirer) seeks to fill, including the type of work the doctor (work-seeker) in that position will be required to do, the location at which and the hours during which they would be required to work and any risks to health or safety known to the employer (hirer) and what steps they have taken to prevent or control such risks
- the experience, training, qualifications and any authorisation which the employer (hirer) considers are necessary, or which are required by law, or by any professional body, for the doctor (work-seeker) to possess in order to work in the position
- any expenses payable by or to the doctor (work-seeker)
the minimum rate of remuneration and any other benefits which the employer (hirer) would offer to a doctor (work-seeker) in the position which it seeks to fill, and the intervals
- at which the person would be paid; and where applicable, the length of notice which the doctor would be required to give, and entitled to receive, to terminate the employment.
- The national terms and conditions of service and NHS medical pay scales provide most of the information required by the Act. However, deaneries may require some additional information relating to individual posts, including details of trust HR policies on expenses etc. If the supplementary pay banding and hours or work or rota are known, these may also be required.
Do the details of all posts within a training programme need to be provided at the start?
No. The obligation to provide the main terms and conditions arises only at the point the introduction of a doctor (work-seeker) to an employer (hirer) is made. In a rotation, after the first employment, this will be at the point a change in employer is to be made. Deaneries are also only required to provide the information they reasonably have at that time.
Where a 'lead employer' system is in operation for a whole programme the situation may be different.
It is important that deaneries retain the flexibility to allocate doctors to posts that will best meet their training requirements, and the operation of the training programme as a whole. It also does not alter the current distinction between the offer a place on a training programme (by a deanery) and offers of employment (by employers) that might be used to deliver training over the course of that programme.
Will this alter the pay protection applied to banding payments?
No. Although deaneries are required to provide information on the main terms and conditions of service and other matters directly to the doctor at the point of introducing them to an employer, each offer of employment remains separate, and can only be made by the employer.
Actions for employers
Employers should respond to any deanery request for information about their training posts, so that the deanery can comply with the requirement to set out that information to any doctor they propose to put forward. Employers remain responsible for making an offer of employment, pre-employment checks and issuing a contract of employment, within eight weeks of commencement.
The information a deanery is likely to need from employers includes:
- location(s) of the post
- hours of work (rota)
- any specific risks to health or safety known to the employer and what steps they have taken to prevent or control such risks
- any expenses payable (details of any local relocation or expenses policy)
- minimum rate of remuneration