The impact of Brexit on the NHS workforce
19th October, 2016
The NHS was one of the key battle grounds in the debate over the UK's membership of the European Union (EU).
While post-referendum there has been a great deal of distancing from the claims about the level of any additional funding (if any) the NHS could receive once the UK has left the EU, it has been noticeable that the pre and post referendum debate about the NHS, was and has been, mostly focused on the finances of the NHS.
Before the referendum, there appeared to be little debate about the potential impact of Brexit on the day-to-day operations of the NHS and on those who work within it.
Issues like what impact any reduction of EU migration might have on recruitment levels to the NHS and how this could affect the delivery of service to patients were given little attention.
Here we consider the impact on the NHS workforce and NHS Trust employers, not only in the future recruitment of EU nationals and staffing levels but also the impact any potential legislative changes post-Brexit might have on the relationship between employer and employee.
The NHS is one of the largest employers in the world, with a significant need to ensure adequate staffing levels are met with the right mix of skillsets.
Medicine has developed as an international profession which maintains itself through global cooperation in research, drug development and standards of patient care and ultimately free movement of doctors around the world.
In particular, the EU’s policies on freedom of movement and mutual recognition of professional qualifications within the EU allow the NHS to recruit many workers from throughout the EU.
Currently, around 55,000 of the NHS’s 1.3 million workforce come from outside the UK. There is a heavy reliance on clinical staff from the EU in London and other big cities.
The obvious benefit for NHS employers in recruiting EU nationals is that it is quicker and easier to recruit staff from the EU in comparison to recruiting outside of the EU because of the freedom of movement rights. Mutual recognition of professional qualifications within the EU also allows the NHS to plug gaps left by the underfunding of training places in recent years.
Immigration and freedom of movement
When taking into consideration these factors, leaving the EU and in particular the UK not allowing the freedom of movement of EU nationals post-Brexit, has the potential to create an immediate short term staffing crisis in the NHS, which in turn could have a detrimental impact on the services provided to the general public.
Therefore, many will be pleased to see the Government being pro-active in its recent attempts to address this pressing issue.
Jeremy Hunt, speaking at the Conservative Party Conference on the 4th October, vowed to increase recruitment of doctors by allowing UK medical schools to offer up to 1,500 extra training places a year with the hope that the number of deployable trainee doctors will increase by up to 25% by 2018/19. This pledge was made with the aim of reducing its reliance on foreign-trained medics and making a “self-sufficient” NHS of British doctors.
Longer term, if the Government does follow through with its vow to create a “self-sufficient NHS” and does not maintain the freedom of movement of EU nationals, the UK is unlikely to be seen as such an attractive destination for EU healthcare professionals.
Even for British-trained medical professionals, Jeremy Hunt is proposing that upon qualification, trainee doctors will be forced to work in the NHS for four years before they can accept overseas postings.
Considering the unrest created by the changes to the Junior Doctors’ contract, which has led to reports of a significant increase in the number of UK-trained Junior Doctors applying to work abroad, this new policy could discourage people wanting to become employees of the NHS at all. Add these two together and there is the potential for a serious skills gap to develop.
One obvious counter-argument to the current workforce concerns is that the NHS may be able to more readily recruit from countries outside of the EU to help ease workforce pressures.
That said, some may question whether it is ethical to increase our import of doctors from poorer countries who need them given the global undersupply. As a result, there are still some big question marks on how this would be achieved.
The immediate concern is that if a new immigration system is implemented, it won’t allow for enough clinical staff to enter the UK, or if they follow the current system there may be disincentives.
In light of Jeremy Hunt’s recent comments, it seems that the Government would agree an amnesty, whereby existing EU migrants could stay.
However, a glaring omission from Jeremy Hunt’s recent comments is the rest of the NHS workforce other than doctors. The Government still needs to clarify how it will address shortages in nursing and ancillary staff.
To date, the Government has been keen to point out that most of the UK’s employment legislation has either been generated or implemented by UK governments, or where it has come from the EU, when it has been implemented into UK legislation it has gone further than the original EU regulation provided.
EU law is incorporated into UK law in a number of ways. A law can be enacted by primary legislation which is by way of an Act of Parliament or Statute. This is contrasted to secondary legislation which is a law enacted by an executive authority under powers delegated from an enactment of primary legislation.
In terms of EU law in the UK, secondary legislation is introduced by a Government Minister under powers granted by the European Communities Act 1972 (ECA).
If the ECA was repealed, secondary legislation made under it would potentially automatically fall away, unless deliberately retained. On the other hand, EU law enacted by primary legislation would be somewhat insulated from the effects of the EU, as it would require primary legislation to repeal it.
In line with Theresa May’s latest comments at the Conservative Party conference during October 2016, on providing certainty to businesses and workers, many commentators do not believe Brexit will have much of an initial effect on employment law.
However, there are some EU employment law regulations that have been unpopular in particular with Conservative governments and while their repeal might be difficult, it would be unsurprising if there is an effort to consider their repeal.
The Working Time Directive
The Working Time Directive (WTD) protects workers from stress and ill-heath that may arise from working excessive hours. The WTD limits working hours to an average of 48 hours per week and guarantees rest breaks and leave.
Junior doctors were brought fully within the scope of the WTD from 2009. Although no concrete plans have been put in place to repeal the WTD, any such move could have serious implications for healthcare workers.
One possible amendment that could be made is to ensure that overtime payments are not included in holiday pay; and holidays are not accrued whilst workers are off sick.
On a broader level, would repealing the WTD inadvertently further increase the workload on the NHS? That may be a bit of a leap; however, the Faculty of Public Health has suggested that EU legislation such as the WTD has brought massive health benefits to the UK’s workforce and the Government does need to clarify its position on whether it plans to repeal certain EU legislation, in order to give workers and employers certainty.
WTD isn’t the only EU-linked legislation that could be repealed. There may be some pressure on the Government to repeal the TUPE regulations, as they are seen by many businesses as “EU red tape”.
TUPE is secondary legislation introduced under powers granted by the ECA. If the ECA was repealed, the secondary legislation made under it would also fall away, unless specifically retained. This could have impacts on NHS staff, as the regulations protect employment rights when employees transfer from one NHS Trust to another or out of the NHS altogether.
While there have been no suggestions TUPE will be repealed at this stage, it seems likely that, following Brexit, the Government will implement small changes to make the regulations more “business-friendly.”
Agency Workers Regulations
One piece of legislation that could possibly be repealed is the Agency Workers Regulations 2010, which introduced a right to equal treatment in relation to terms and conditions of employment for agency workers in comparison to permanent employees after 12 weeks in a particular job.
Due to the sheer size of the NHS, it utilises a lot of agency workers and locums. However, the NHS Improvement has recently announced measures to reduce spending on agency staff within the NHS.
The rules will impose price caps on what the Trusts can pay per hour for an agency worker and will require a percentage reduction in agency spend if the current agency spend exceeds certain thresholds.
Therefore, it’s hard to decipher at this stage what the true impact any repeal of the Agency Regulations 2010 may have on the NHS. Some commentators suggest that repealing the legislation may work in the NHS’s favour as it would give a lot more flexibility about how to engage agency workers and locums, although this will come at the expense of various agency workers’ rights.
Although there is great uncertainty over what the long term impact Brexit could have on the NHS, it is very likely there is going to be significant challenges in the short term for the NHS to meet workforce recruitment levels and legal requirements in employment law.
It isn’t just NHS bodies themselves who face uncertainty. The current EU workforce and any potential EU employees will be sitting nervously in this post-Brexit climate.
On one hand, many argue the Government will have more control and access to funds for the NHS once the UK leaves the EU; funds that can be used to offset part of the cost Jeremy Hunt’s new policy of creating a “self-sufficient NHS”.
On the other hand, Brexit could lead to an NHS staffing crisis as well as a potential economic fall-out, both of which will have profound implications on patients and the service. The Government certainly faces some of the hardest economic and political decisions in decades.
There is unlikely to be an avalanche of change in employment legislation in the short term. Whilst it is true that a significant proportion of the UK’s employment law comes from the EU, a lot of it was built on legislation already enacted by UK governments, and a lot of the provisions are extremely popular with employers and employees alike.
Any legislation that will automatically fall away with the repeal of the ECA will probably be maintained by the UK Government enacting saving legislation to maintain the status quo, at least for a transitional period.
Therefore, an immediate relief from the Brussels ‘bureaucracy’ is not anticipated. However, once we have left the EU, there is nothing stopping future governments revisiting any legislation intrinsically linked to EU legislation.
How can Ward Hadaway help?
At Ward Hadaway we have a fully integrated public sector property and commercial team with experience of setting up and transferring estates into shared asset and services vehicles.
We are able to help with all of the issues highlighted above to assist you in preparing for and implementing these estates strategies in response to these policy developments.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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