Continuous service dispute, bank work for the NHS not being recognised

[zebralegs1]

I have read through the Agenda for Change policies, appendices and FAQ-s and I have read associated documents from the employment act and discrimination act 

 

I think my bank work (0 hours contract) should be recognised as part of my continuous service in the NHS as it meets several factors of employment.

 

 

I never had more than 7 days off work in the whole of my bank work, I was employed directly by an NHS trust not an agency,

 

they added me to the company pension automatically, I had agreed hours and a manager for each assignment who oversaw my work etc.

 

I feel that as the term bank work or worker is not in the AfC policy and worker is not a legal term, that I should have my bank work recognised as part of my continuous service.

 

I have tried to speak to HR at NHS England but each response I've had is negative and they have quoted sections where it talks about agency workers not qualifying for this employment benefit.

 

Is someone able to help me understand why they record bank work for years of reckonable service on your IAT but it doesn't count towards continuous service?

 

Nhse are going through potential redundancies and if I am made redundant i won't get any pay out as they are only counting my continuous service from when I joined them last year, however I have many years reckonable service which would come to 8-10months worth of pay.

 

I was working for the NHS since Jan 2020 In this most recent stint with some of that being continuous bank work.

[honeybee13]

Hello, welcome to CAG.

 

Have you spoken to HR where you work currently about this?

 

Best, HB

[zebralegs1]

Hi, thank you.

 

Yes I have, but I don't really get any discussion, I tried to ask for an appointment to speak to a senior manager about it but I didn't get one. They just say it doesn't count. It just doesn't sit right as there seem to be reasons and legal precedents where 0 hours contract workers have gained the same rights as employees before if they meet certain criteria which I feel I did

[honeybee13]

I've never worked in the NHS but surely there's a line manager between you and senior managers that you could discuss this with as well?

 

I would be asking why 'they' think you don't qualify as having continuous service and if they could explain their reasoning in writing, please.

 

Do you have pay slips going back over the years that show who was paying you? That could be helpful.

 

HB

[zebralegs1]

I have completed the request form they asked for and got my manager to sign off on it along with their reasons for why it is relevant work history, but we've just been told no because they don't accept bank work. I've even written up a page ir two quoting the AFC and the acts and why it should count but they don't address my questions. They just tell me they don't accept agency work. I've sent in my payslips and total rewards statement for the pension and everything I could think of but they either won't accept the evidence or don't acknowledge it. 

 

I think its either I give up because its easier , or I get some sort of employment law advice because it seems wrong to me and I want to stand my ground. It just seems completely wrong that they could accept a foreign firm of health service work as part of continuous service but not bank work with an NHS Trust in this country.  That to me is discriminatory.

[BazzaS]

Are you in a union?

 

Sounds ripe for union advice / representation if you are.

[zebralegs1]

No I'm not in a union and I don't particularly want to join one either.

[honeybee13]

That's a shame because they might have been able to help you.

 

Have you tried speaking to ACAS which you can do before starting an employment dispute? I don't know if they understand NHS contracts.

 

HB

[zebralegs1]

I haven't tried ACAS but I will. Thanks for your help

[honeybee13]

Good luck and please let us know what they say.

 

HB

[Homer67]

As an NHS employee of 24 years and an NHS Contractor before that, I can advise you that Bank Employment (NHS Staff Bank) does not count as continuous employment as you were not employed by the NHS as an employee but as a contractor and you were paid a different rate to the AFC band for whatever role is was.

 

Sorry but that's how it is.

[zebralegs1]

Thanks Homer67. In all the emails and documentation I have it never mentioned the word contractor and it was so misleading as they entered me into the nhs pension and my pay was standard AFC band pay plus a slight uplift for annual leave rates... it just seems so wrong

[Homer67]

NHS Bank staff don't pay into the pension fund as far as I am aware.

[BazzaS]

Then OP needs also to clarify:

a) if pension payments were made on their behalf, and if not

b) where the pension payments taken off their pay have gone to!

[zebralegs1]

Hi Bazza, can I just check who you mean by OP? 

[BazzaS]

OP : original poster (so, you!)

[zebralegs1]

I managed to get hold of my first payslip from  my bank work where I was automatically entered into the pension. I have removed my personal details, but do you think that this shows proof of employment in order to receive benefits such as continuation of service?

1st bank pay slip with pension deductions.pdf

[unclebulgaria67]

Quite a complex subject !

 

Does the payment into a pension scheme evidence employment which would be part of continuous service record when employers calculated entitlement to redundancy payments ?

 

I should imagine this has been subject to legal challenges through the courts before.

 

You need to look at your NHS Bank employment contract terms and conditions. I would be fairly confident in believing that the NHS will have included wording in the contract stating that payments towards pension do not form part of any continuous employment record. They are making pension payments as part of the Bank hours pay terms only.

[honeybee13]

I agree with UB.

 

When you started this thread, I did look up about contractors being able to join a pension scheme and I'm pretty sure it's possible to do that without being an employee. As UB says though, you need to check the NHS rules.

 

HB

[zebralegs1]

I was only given an agreement as far as I can tell. When I applied for the position I was given a conditional contract of employment which is the standard conditional contract for ngs jobs as far as I'm aware, but when it was completed I got this agreement. What do you think?

I had constant "assignments" during the period in question snd no leave longer than a week.

bank contract anonymised.pdf

[unclebulgaria67]

Bank work for NHS does not form part of any continuous services in regard to any redundancy payments.  The document you have uploaded say it is not a contract of employment ( as copied below).  The document also mentions about the agreement terms only applying when you do the Bank work.

 

"For the avoidance of doubt you will not be entitled to benefit from any rights set out in this agreement during periods when you are not working for the Trust. This agreement is not a contract of employment. Any contract of employment that you may have with the Trust will be separate from this Agreement."

 

You would think that if the Bank work was considered as part of continuous service that this would be confirmed in online forms, as other Bank staff would be telling others about this.  There are thousands of NHS Bank staff who will have had the same questions and tried to pursue this.  And the NHS will have gone through this issue on many occasions with lots of people.

 

Speak to the relevant Union or join if not a member.  And ask them about this.