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.