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Ben Jones
Ben Jones, UK Lawyer
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Experience:  Qualified Solicitor
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I joined the NHS in 2013 and in 2017 our service was taken

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Hi, I joined the NHS in 2013 and in 2017 our service was taken over by a private healthcare company. When they took us on the kept us on our NHS contracts. I am currently on mat leave and the private company are paying my the NHS enhanced rate of nat pay. I understand I am liable to repay this if I do not return. However in the NHS policies it states that if I were to return to another NHS service I would not need to repay.
JA: Was this discussed with a manager or HR? Or with a lawyer?
Customer: I have discussed with HR who say I would be liable to repay the enhanced mat pay to the private company I am employed by.
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: I am employed part time but am on mat leave. I do not belong to a union
JA: Anything else you want the Lawyer to know before I connect you?
Customer: I want to know whether they can make me repay the mat pay if I am to take a job back in the NHS instead when I return. Can they go against the NHS policy?

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. I may also need to ask some questions to determine the legal position.

Customer: replied 3 days ago.
Ok
Customer: replied 3 days ago.
I’d prefer to stick with with typing please, I can’t really afford the phone call

Did you receive a new contract when the private company took over?

Customer: replied 3 days ago.
No I don’t believe so. They just kept us on the NHS ones we were on.

Thank you. I will get back to you with my answer as soon as I can, which will be at some point today. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Many thanks for your patience. When you say ‘the NHS policies’ were these policies part of your contract, or are they just workplace policies that are not contractually binding?

Customer: replied 3 days ago.
https://www.nhsemployers.org/pay-pensions-and-reward/agenda-for-change/nhs-terms-and-conditions-of-service-handbook/parents-and-carers/maternity-leave-and-pay-section-15

I believe they are part of the contract? But to be honest I’m not sure. My new employer has honoured the enhanced NHS mat pay and I get the same number of annual leave days as NHS policies and all the other ‘perks’ of an NHS contract etc
Customer: replied 3 days ago.
The private company would only usually pay stat mat pay to its employees and significantly fewer annual leave days

Thank you. Agenda for Change is indeed a contractual document and will form part of your terms and conditions.

 

If the Transfer of Undertakings (Protection of Employment) Regulations 2006 (better known as TUPE) apply to a transfer, those employees assigned to the transferring business will automatically move to the new employer on their existing contractual terms and conditions. Simply put, the new employer would 'step into the shoes' of the old employer and the employees should start working for the new employer as if nothing had changed, apart from the name of their employer.

 

This is the ideal outcome, although post-transfer difficulties can often arise. For example, the new employer may wish to try and change some of the incoming employees’ terms and conditions as they may not necessarily agree with the terms they were entitled to under their old contracts. However, under Regulation 4(4) of TUPE any changes are automatically void if the sole or principal reason for them is the transfer.

 

The only circumstances under which an employer may wish to try and introduce changes are:

{C}· If they were unconnected to the transfer; or

{C}· If they were necessary for an economic, technical or organisational (ETO) reason, subject to employee agreement or the terms of the contract permitting the change.

 

I think that the fact the AfC terms clearly meant to be interpreted in relation to any moves within that organisation means that the new employer may try and argue that these are no longer applicable and could potentially be changed for an ETO reason (i.e. the new employer has nothing to do with you being employed by another NHS employer so the protection for repayment of maternity pay can be argued to be no longer relevant or applicable)

 

If there are concerns about the fairness and validity of any changes introduced by the employer following a transfer, a formal grievance can be raised with the employer. Following that, the main option to pursue this would be by resigning and making a claim for constructive dismissal in the employment tribunal.

 

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