Posts Tagged ‘Deaneries’

Employment rights when applying for training jobs

By Mike Broad - 15th February 2010 11:46 am

Campaigning group Remedy recently forced the government, following a legal challenge, to delay their plans to exempt deaneries from employment agency legislation.

This is of significance to any doctor involved in the recruitment process, who would have been deprived of many employment rights by these proposals. The legislation governing the conduct of employment agencies was passed by Parliament in order to give protection to vulnerable workers.

A government consultation, in early 2009, stated that they ‘consider that [Deaneries] operate as employment agencies within the definition contained in the Act’ and that they wished to introduce an exemption. Their reasons for doing so were unclear. Remedy’s legal team postponed the introduction of the exemption, possibly indefinitely.

Following this, Remedy has prepared a briefing document which they suggest all applicants for training jobs read. Here’s a summary:

Do you know your rights?

Employment agency legislation may protect doctors in many areas - in particular around confidentiality, ’stick-or-twist’ and your right to information before accepting a post.

Employment agency legislation offers significant protection to work seekers. Here’s a simple guide to it. 

What is an employment agency?

Section 13 of the 1973 Employment Agencies Act defines them as being: 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.

There are three important parts of the Act Remedy highlights:  

• Information given to work seekers.

• The twist and stick dilemma.

• Maintaining your confidentiality.

The legislation requires that sufficient information is given to work-seekers, including the place of work, the nature of the work and the duration of employment. This information needs to be provided to the work-seeker by the employment agency at the time that the offer is made, or in any event within three business days.

The second is the statutory requirement under Section 6 of the 2003 Act that prevents employment agencies from: subjecting or threatening to subject a relevant work-seeker to any detriment on the ground that -

(i) the relevant work-seeker has terminated or given notice to terminate any contract between the work-seeker and the agency or employment business; or

(ii) in the case of an employment business, the relevant work-seeker has taken up or proposes to take up employment with any other person; or

(iii) require the relevant work-seeker to notify the agency or the employment business, or any person with whom it is connected, of the identity of any future employer of the relevant work-seeker.

Remedy believes that this requirement affects the ability of an employment agency to compel applicants to withdraw their other applications when they receive an offer.

Your confidentiality is protected by Section 28 of the Act.

1. Neither an agency nor an employment business may disclose information relating to a work-seeker, without the prior consent of that work-seeker, except -

(a) for the purpose of providing work-finding services to that work-seeker;

(b) for the purposes of any legal proceedings (including arbitration); or

(c) in the case of a work-seeker who is a member of a professional body, to the professional body of which he is a member.

2. Without prejudice to the generality of paragraph 1, an agency shall not disclose information relating to a work-seeker to any current employer of that work-seeker without that work-seeker’s prior consent, which has not by the time of such disclosure been withdrawn, and shall not make the provision of any services to that work-seeker conditional upon such consent being given or not withdrawn.

Why don’t deaneries admit they are employment agencies?

Strangely, legislation requires that employment agencies mention their status in every advertisement. This is important so that work-seekers know what sort of organisation they are dealing with. Remedy will be writing to BERR shortly asking why this is not enforced.

Training programmes and contracts of employment

A contract of employment is a binding agreement between employer and employee, governed by employment law, which sets out the rights and duties of the two parties.

A training contract is a separate type of agreement between trainer and trainee. It is important that you check which type of contract - employment or training - you have signed.

If I withdraw from a job will the GMC be interested?

The threat to refer doctors to the GMC might appear to be covered under Section 6 of the 2003 Act (see above).

We recognise that the provision of safe levels of patient care is essential, that it would be irresponsible for doctors to pull out of a job that they had agreed to do at short notice, and that once you have accepted a firm offer of employment then you must honour that commitment. The GMC itself has issued guidance on this subject.

If you find yourself in this predicament then there are two important aspects to consider. Firstly there is the nature of the contract - employment or training - that you have signed. Paragraph 49 of Good Medical Practice refers solely to a ‘post you have formally accepted’.

Secondly you must consider what would be a reasonable period of notice to give if you were to withdraw. Three months is the usual notice period for Specialty Trainee jobs.

I have been offered a place on one training programme, but haven’t heard yet from the one I prefer. What should I do?

Despite the provisions of employment agency legislation, Remedy is getting reports from doctors who have been asked to sign agreements that run contrary to Section 6 of the 2003 Act.

If you intend to withdraw from all other training programmes that you have applied for then we would encourage you to let the deaneries know this. However you might still consider that their letter compelling you to do this contains a threat that breaches Section 6 of the Act, and you might wish to let BERR know. You can do this anonymously.

If you do not intend to withdraw from all other training programmes then you should let the deanery know this, and you should also state your reasons. You should never deliberately mislead them of your intentions or give false or incorrect information.

I think a deanery has breached the regulations. What should I do?

You can let BERR know this by writing to them directly.

For more visit the Remedy website.

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“A major blow against limiting doctors’ rights”

By Richard Marks, Remedy's head of policy - 26th January 2010 3:25 pm

Remedy is delighted that our legal team has forced the government to delay their plans to exempt deaneries from employment agency legislation.

This is of significant importance to any doctors caught up in the recruitment process, who would have been deprived of many employment rights by these proposals. The legislation governing the conduct of employment agencies was passed by Parliament in order to give protection to vulnerable workers.

A government consultation in early 2009  stated that they ‘consider that [Deaneries] operate as employment agencies within the definition contained in the Act’ and that they wished to introduce an exemption. Their reasons for doing so were unclear.

The Act gives the power to introduce exemptions by regulation, subject to consultation, and a consultation took place in the summer. Both Remedy and the BMA opposed the change, arguing that it was not in the best interest of doctors. But the government announced in November 2009 that the respondents on the issue of postgraduate deaneries ‘mainly comprised a number of Deaneries who were in support of the proposal’. They also stated that they had been presented with  ’evidence that the potential consequences could be to seriously hinder the recruitment and training arrangements for junior doctors with a subsequent impact on both costs and staffing for the NHS’.

Remedy believes that the consultation was not carried out properly. We had no idea what the ‘potential consequences’ were, and we have had no opportunity to comment on them, or on the evidence which is referred to.
Our lawyers sent a Letter Before Action to Lord Peter Mandelson on 11 December, challenging the veracity of the consultation.

In their reply, the government solicitors agreed to re-consult on whether or not to introduce the exemption. They offered  to consult specifically in areas around training and recruitment. No date has been set for this re-consultation.

The status quo has been maintained, and the proposed exemption has been delayed - possibly indefinitely. We are very grateful to our legal team at Blackstones and Leigh Day in securing this result.

This delivers a major blow against a concerted effort by government to limit the employment rights of doctors. We anticipate further attempts in the future and will do everything to resist them if they are unfair.

Doctors should enjoy the same level of protection against abuse as other parts of the workforce.

The government has also agreed to negotiate a code of conduct for deaneries, and Remedy has been asked to join these negotiations alongside the BMA. We have drafted our thoughts on this and are now seeking the views of our supporters.

Our views on the implications of Employment Agency legislation and the issues that we feel need to be addressed can be read on the Remedy website. 

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Government delays deanery reform plans

By Francesca Robinson - 3:05 pm

Lawyers acting for campaign group Remedy have forced the government to put plans to exempt deaneries from employment agency legislation on hold.

But the BMA has warned that this is only a delaying tactic and will not in the longer term prevent the government from declassifying deaneries as employment agencies.

Remedy’s lawyers challenged the way the Department for Business carried out the consultation on the exemption. Both Remedy and the BMA opposed the move, arguing that it would deprive juniors of key employment protection rights.

They would like juniors to be provided with more information when applying for jobs, such as its location, hours of work and pay, and stop them feeling obliged to accept their first job offer.  

The government has now offered to hold a new consultation and to seek opinions on training and recruitment. It has also invited Remedy to join with the BMA in negotiating a code of conduct for good employment practice by deaneries.

Remedy’s head of policy Dr Richard Marks said the proposed exemption had been
delayed - possibly indefinitely. “This delivers a major blow against a concerted effort by government to limit the employment rights of doctors. We anticipate further attempts in the future and will do everything to resist them if they are unfair,” he said.

Dr Shree Datta, chair of the junior doctors committee, said the decision to hold a new consultation was good news for doctors caught up in this year’s recruitment process.

But she warned there was no indication that the government had abandoned its plans to declassify deaneries as employment agencies. It was still pressing ahead with plans to establish a code of conduct it intended to replace the protection provided by the employment legislation. Two meetings to discuss the code have already been held.

“This is going to be a real battle for the next few months because we will need to make sure we negotiate the best deal for juniors and that the code of practice has teeth. Both Remedy and the BMA will be working to make sure that deaneries will be held to account if they don’t do things correctly,” she said.

A Department for Business spokesman said: “We want to ensure that all interested parties have an opportunity to comment on the issue of medical deaneries and employment agency legislation and that these comments are taken into account before the department reaches the correct decision in the public interest. To ensure this, the department will be consulting again and will notify stakeholders in due course on the timing of this consultation.”
The BMA is asking for any juniors who have suffered from poor employment practice to contact them to help them argue their case for a robust code of conduct.

Read a blog on the issue. 

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Legal challenge over juniors’ employment rights

By Francesca Robinson - 30th December 2009 1:24 pm

A legal challenge has been issued to the government over decisions it has made which deprive junior doctors of key labour protection rights.

Lawyers employed by the campaign group Remedy are questioning the propriety of a consultation carried out earlier this year on whether to exempt deaneries from employment agency legislation.

Remedy has opposed the move because it claims that it deprives juniors of key employment protection rights.

Abuses include failing to inform junior doctors seeking work through deaneries of which rotation jobs they will be assigned to when they apply; being forced to ’stick or twist’ on jobs; and not knowing where they will be two weeks before a job starts.

Remedy’s lawyers have sent a legal ‘letter before action’ to Lord Mandelson, the business secretary, in a bid to persuade him to withdraw his decision and to start the consultation process again.

They have highlighted the way the Department for BIS justified the exemption on “potential consequences” and “evidence” - the details of which were not revealed.  

They argue that the consultation came to the conclusion that the only group who could be affected by the proposed changes to the law would be the deaneries themselves. They also point out that there was no consideration of the impact this action would have on the doctor.

Remedy’s head of policy Richard Marks said: “In the short term this legal action will delay any changes which will be to the benefit of those currently going through the system. But our long-term aim is to campaign for better and fairer controls of the ways that deaneries conduct recruitment.

 “We want to see the levels of protection for doctors increased, not reduced. The distant promise of a code of conduct with very uncertain powers is simply not good enough.”

In return for exempting deaneries from employment legislation the Department for BIS has proposed establishing a code of conduct to govern future recruitment and training arrangements for junior doctors.

 But Dr Shree Datta, chair of the BMA’s junior doctors’ committee said they were concerned about how much teeth the code would have and whether it would be enforceable. 

“We will await with interest the progress that Remedy make on this issue. Meanwhile were are putting pressure on deaneries to make sure they are aware of the feeling among junior doctors on this issue,” she said.

A Department for Business spokesperson said: “I can confirm that we have received a letter from Remedy and are in the process of considering it.”

Read a blog on the issue.

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Exempted deaneries need a code of practice

By Dr Shree Datta, chair of the BMA's JDC - 14th December 2009 1:03 pm

Can you imagine a job advert that doesn’t tell you where you will be working, the hours of work, what you will be paid, when you need to start or the length of the employment? Furthermore, when you call up to ask these questions your prospective employer refuses to give you an answer…

Well many of us don’t have to imagine, we just have to be junior doctors. Everybody from office temps to fruit pickers has the basic right to this information but, it seems, not junior doctors.

In 2008, the BMA challenged the Employment Agency Standards Inspectorate (EASI), the organisation responsible for regulating employment agencies, to find out whether deaneries were employment agencies in the eyes of the law. If they were, deaneries would have to comply with the requirements of the Employment Agencies Act and supply all the basic details about their jobs before they start.

Much to our satisfaction EASI confirmed that postgraduate medical deaneries appear to be employment agencies and as such would be required to comply with the requirements of the Employment Agencies Act. The BMA immediately began notifying EASI of deaneries failure to comply with the legislation.

Sadly, the costs of getting deaneries to provide junior doctors with the same basic rights as other workers caused the government machine to whirr into action and in

In May 2009, the Department of Business and Skills (BIS) published a consultation which detailed their intention to exempt deaneries from the employment agency regulations.

The BMA responded strongly to this consultation stating that deaneries should not be exempted. If BIS chooses to ignore the views of junior doctors and exempt deaneries then we must start the hard work of getting deaneries to sign up to a code of practice that raises standards.

Junior doctors are united on this issue and the JDC will do everything in its power to get what are basic employment rights for junior doctors. Should we not be satisfied with the terms of the code of practice for UK junior doctors, we will not be able to agree to them.

Our aim is to ensure that junior doctors are merely afforded the same rights to any other work seeker - no less. We will have a better idea of the direction of the code of practice early next year, so watch this space.

In the meantime, do get in touch with the deaneries and the BMA if you have trouble with applications for specialty training.

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Juniors set to lose employment protection rights

By Francesca Robinson - 25th November 2009 6:54 am

Junior doctors will lose key labour protection rights from the New Year following a government decision to exempt postgraduate deaneries from employment agency legislation.

This means they will be deprived of basic employment rights enjoyed by other workers, claims the campaign group Remedy UK and the BMA, who have fiercely opposed the change.

Remedy’s head of policy, Dr Richard Marks, said the decision enables deaneries to continue using poor employment practices when employing doctors.

These include giving doctors only 48 hours to accept a position creating a dilemma for them if the job is not their first choice. The candidate must then either play it safe and accept a ’second choice’ placement, or reject the offer and gamble on receiving a preferable one. 

Deaneries are also frequently criticised for failing to supply job applicants with key information - such as details of salaries and expenses and where they will be required to work - until after the have started their placements.

Marks said: “There are some really outrageous things that deaneries do to junior docs which have become so established in medical culture that we just accept it en masse.”

Remedy warned that the government’s decision will open a loophole that will be able to be exploited by other organisations that recruit junior doctors, such as private locum agencies. He argued that they too will also see themselves as exempt from the legislation.

“We believe the status of deaneries in employment law terms is now very unclear,” said Marks. Remedy is currently investigating whether European employment legislation, which has a broader remit, could apply to deaneries.

The Department of Business Innovation and Skills (BIS) outlined the government’s position in its response to a review of the 2003 regulations governing the conduct of employment agencies. 

Deaneries were originally exempt from the Employment Agencies Act 1973 but following an NHS reorganisation in 2006 were inadvertently brought within its scope. BIS describes this as an “oversight”. 

The government argues that failure to exempt deaneries from employment agency legislation would “seriously hinder the recruitment and training arrangements for junior doctors with a subsequent impact on both costs and staffing for the NHS”. The changes are to come into force in early 2010.

To address the BMA’s concerns, BIS has proposed establishing a code of conduct to govern future recruitment and training arrangements for junior doctors.

But Datta says the JDC is concerned about how much teeth the code will have and whether it will be enforceable. 

“We will be pushing for it to have the same remit as the original legislation. This is a huge issue that is close to junior doctors’ hearts and uniquely only affects juniors.

“All we are asking for junior doctors to be treated the same way as any other workers,” she said.

The JDC is asking trainees to let them know which deaneries are not treating them fairly so that they can put pressure on them to improve standards.

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Bring deaneries into line to protect doctors

By Dr Richard Marks, head of policy at Remedy - 15th July 2009 12:14 pm

Employment agencies legislation was introduced in the 1970s to protect workers. Sharp and unscrupulous agencies were exploiting their workers by charging them fees, sending them to jobs that were very different to how they had been described and where the hours and conditions did not match those advertised.

Postgraduate deaneries act in many ways like an employment agency. The legislation defines these as businesses which find employment for workers and supply employers with workers for their employment.

Employment agency legislation imposes a number of demands, which deaneries do not always comply with. Workers should be given details of the place they are working within three days of a job offer. Workers should be able to reject a job they have been offered but haven’t started, with no penalty. And there are duties of confidence around the employment process.

Remedy has been campaigning for some time to ensure that doctors are protected in the same way as other workers. Whether or not deaneries are covered by this legislation remains unclear.

One Department of Health spokesman told me that it had been “a bit of an oversight” and that deaneries were never intended to be restricted by this legislation.

So we looked with interest at a recent government consultation on the conduct of employment agencies. This makes it quite clear that the government considers “that they operate as employment agencies within the definition contained within the Act, and there is currently no legislation in place for them”.

This is excellent news for doctors. In particular, it should stop the draconian practice whereby jobs are offered in a recruitment round where doctors are compelled to withdraw from other jobs that they have applied for, before they have even been told what job it is that they are accepting. Remedy have always considered this as deeply unfair and would be interested in hearing from anyone who has been disadvantaged by this.

But there is a sting. The government now proposes to introduce an amendment to the legislation so as to exempt deaneries. This amendment has been so badly worded that it will not only exempt deaneries but could also exempt other medical employment agencies.

The justification that they give is flimsy. They argue that they want to “restore deaneries to their previous position” of being exempt - in other words before they had noticed the oversight. But this doesn’t explain why they should be exempt in the first place.

Why are doctors not protected in the same way as workers in the catering trade? Why do we allow ourselves to be exploited in this way? Remedy urges you to write to your MP and ask them to oppose these changes.

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