Photo: 'NHS Sign' from Schtumple on Flickr photostream

The 2012 Health and Social Care Act (HSC) marks the de-regulation of primary health care in Eng­land. Much of the crit­ical response to the legis­la­tion has been con­cerned with the implic­a­tions for patients: what will the reforms mean for the broad polit­ical com­mit­ment to provid­ing free uni­ver­sal health­care?

The pro­gnosis for the NHS is not good but there is a faint glim­mer of hope, given the high esteem in which it is held by the elect­or­ate. The pop­u­lar com­mit­ment to the NHS as a social good is still strong. There is, how­ever, a far more imme­di­ate threat to the every­day work­ing of the NHS that needs to be con­sidered — NHS staff and the prac­tice of TUPE’ing. The NHS as a health ser­vice is not just a social good; it is a col­lect­ive social good. It can­not be sep­ar­ated from its staff and their con­di­tions of employ­ment, but this is exactly what the Coali­tion gov­ern­ment is cur­rently doing.

Under the terms of the 2012 Act, ‘any qual­i­fied pro­vider’ (AQP) can sub­mit a tender to the local Clin­ical Com­mis­sion­ing Group to provide health­care ser­vices. Since the act was passed in March, Serco, act­ing as AQP, have been awar­ded a £140 mil­lion con­tract to provide Com­munity Ser­vices in Suf­folk. Sim­il­arly, and without a trace of irony, Vir­gin Care will be provid­ing Sexual Health Ser­vices in Milton Keynes. Accord­ing to Uni­son, the Serco con­tract in Suf­folk will res­ult in 1000 staff being TUPE’d’ from NHS con­tracts on to Serco contracts.

TUPE or Trans­fer of Under­tak­ings [Pro­tec­tion of Employ­ment] arrange­ments are noth­ing new. Ruane (2007) describes TUPE arrange­ments under New Labour PFI schemes, where many sup­port ser­vices, such as hos­pital port­ers, pre­vi­ously provided by salar­ied NHS employ­ees, came to be provided through private sec­tor com­pan­ies (and Serco has form here). Staff ended up per­form­ing exactly the same duties, but under dif­fer­ent con­di­tions of employ­ment. For example, Ruane details how port­ers in Durham repor­ted a £30-£40 per week short­fall in salary between TUPE and non-TUPE staff doing the same work. Between 2003 and 2005, and on the back of trade union mobil­isa­tion, agree­ment was reached over a pub­lic sec­tor ‘two-tier code’. This code meant that any pub­lic sec­tor employ­ees who were TUPE’d to private sec­tor organ­isa­tions could not be offered a con­tract deemed to be ‘over­all less favour­able’ than their pre­vi­ous pub­lic sec­tor con­tract (with the excep­tion of pen­sion pro­vi­sion). The two-tier code was imple­men­ted in health­care through the ‘Agenda for Change and NHS Con­tract­ors Staff – a Joint State­ment’, which was agreed in 2005.

On 13 December 2010 the Cab­inet Office with­drew the ‘two-tier’ code across all pub­lic sec­tor ser­vice con­tracts, without dis­cus­sion. It was replaced by six ‘Prin­ciples of Good Employ­ment Prac­tice’ These new prin­ciples are vol­un­tary and have not been nego­ti­ated between gov­ern­ment, employ­ees, employ­ers and trade uni­ons as the two-tier code was. The require­ment to avoid less favour­able con­di­tions is replaced by a com­mit­ment to ‘fair and reas­on­able terms and con­di­tions’, such that;

Where a sup­plier employs new entrants that sit along­side former pub­lic sec­tor work­ers, new entrants should have fair and reas­on­able pay, terms and con­di­tions. Sup­pli­ers should con­sult with their recog­nised trade uni­ons on the terms and con­di­tions to be offered to new entrants.

The implic­a­tions of this change, in light of the AQP legis­la­tion and the bun-fight that de-regulated NHS pro­vi­sion is quickly becom­ing, are stark and imme­di­ate. The NHS, as a col­lect­ive social good, is con­sti­tuted as much by its staff — by what it does for its staff and what it garners from its staff in return — as it is by a com­mit­ment to uni­ver­sal health care, free at the point of need. The lat­ter isn’t pos­sible without the former. Such is the strength of feel­ing for these prin­ciples of free access to health­care, that attempts at their reform would be polit­ic­ally unsus­tain­able. Staff are alto­gether a softer, more indir­ect and more polit­ic­ally sus­tain­able tar­get. The with­drawal of the two-tier code coupled to the open­ing up of health­care to any qual­i­fied pro­vider, (and the con­sequent privat­isa­tion and trans­fer of large num­bers of NHS staff) is a far more imme­di­ate threat to the future of the NHS than the carve up of primary care that is cur­rently dom­in­at­ing the debate. The implic­a­tions of this privat­isa­tion of staff for the future of the NHS are far more invi­di­ous than people real­ise. There is a very clear danger that the NHS becomes noth­ing more than a brand, along­side Serco, Vir­gin Care and oth­ers. Once this hap­pens, what becomes of the com­mit­ment to free uni­ver­sal health­care as a col­lect­ive social good? I would argue the situ­ation becomes terminal.

Ref­er­ences and further information

Ruane, S. (2007) ‘Acts of dis­trust? Sup­port work­ers exper­i­ences in PFI hos­pital schemes’, 75–92, in G. Mooney and A. Law (eds.) (2007) New Labour/Hard Labour? Restruc­tur­ing and res­ist­ance inside the wel­fare industry , Bris­tol: The Policy Press.

This blog post previously appeared on the ‘No Way To Make a Living: a sociological space about work’ blog.