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Jenny
Jenny, Solicitor
Category: Law
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Experience:  Qualified Solicitor specialising in Employment Law and general legal matters. Please start your question For Jenny Only
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Employment law question. I work for a Welsh NHS trust on zero

Resolved Question:

Employment law question.
I work for a Welsh NHS trust on zero hours. For more than ten years . I don't have a substantive post. I did back in 2004.Where my contract is and what it says not even my line manager is sure of. In May not even exist other than when I did have a substantive post.
Recently a private nursing agency has been filling the positions the internal bank cannot . They pay three times as much and I am a few weeks away from being appointed with them
1) Can I work for both in the same trust region..The trust and the private agency say no ..but why
2) If I resign from the trust the trust won't accept nurses who previously worked for them even if the position needs to be filled urgently.. they call it a cooling off period which has not even been defined where I am but another trust has set it at six weeks. Is this moral ? Is it legal. It is certainly spiteful.
3) I am engaging the RCN ( union) in this issue ..it is an area where private health care is winning over NHS for nursing and medical provision and the administration is desperate to stop it ..but are people's rights to work being penalised by unlawful actions of desperate managers ? Surely it's just normal competitive stuff going on.. well run private companies providing trained professionals when badly organised public bodies can't...and if the interests of the patient are to be upheld then it's essential these professionals can get through to them..without being turned away by made up administrative walls. ...
Phew...what do you know ?
Submitted: 2 years ago.
Category: Law
Expert:  Jenny replied 2 years ago.
taratill :

Hello my name is ***** ***** I am happy to help you today. What reason do they give that you cannot work via the private agency in the same job?

Customer:

No reason is given. The private agency and the trust have just said that is the rule.

taratill :

How many hours a week have you been working on average over the time you have worked there?

Customer:

Not sure...lately only about 16 hrs a week this year...

taratill :

would that be the case over the last 12 weeks?

Customer:

Yes

taratill :

So are they saying that going forward you will not have 16 hours and that these will go to the private company?

Customer:

No I could work all day everyday ..as many hours as is legal. It's my choice. The private agency are offering a better rate of pay. The NHS trust cannot fill the positions which I would be taking up so as a last resort it goes out to a private nurse agency

taratill :

so it's not that you are not being offered work it is the rate of pay that is the issue?

Customer:

For sure...I cannot get the trust to offer me more..so I am going to work for someone who will.

Customer:

I could travel to another health board or trust and work there...no problem..but prefer to stay in my locality ..

taratill :

what is the difference in pay?

Customer:

Three or four times... bank holiday pay is £60 hour...they also give incentives to get the jobs filled...i

taratill :

presumably the private company is only used an emergency provision?

Customer:

That's right...but it's an emergency everywhere ..all the time ..hundreds of positions nationally at any one time..

taratill :

Ok thanks, ***** ***** me time to prepare an answer. I will respond to you shortly in full.

Customer:

Ok ...

taratill :

Ok from an employment law point of view there is nothing much you can do in this situation because you are being offered hours of work at your normal rate of pay. Your employer is not stopping you from leaving and cannot stop you from applying to work for the private company. An arrangement between the private company and your employer may effectively prevent you from working for the cooling off period but as this does not discriminate against you on the basis of sex, race, age, religion or disability there is no legal claim that can be brought on that basis.

taratill :

You can of course, raise a grieavnce about your rate of pay but the Trust do not have to match that provided by the external provider.

taratill :

This is because it is for emergency provision and is irregular and a person working through the trust will not have continuity of service.

taratill :

This is the legal position I understand that morally and politically this may seem unfair.

taratill :

If you have any further questions please do ask. If I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.

Customer:

So the trust management team can make operational decision that they choose to so long as it's not discrimination

taratill :

Yes but they cannot take your hours off you and give them to the private company, this is what at first I thought you were saying the were doing.

Customer:

Ok thank you

Jenny, Solicitor
Category: Law
Satisfied Customers: 6305
Experience: Qualified Solicitor specialising in Employment Law and general legal matters. Please start your question For Jenny Only
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