Notice has been given to trusts terminating their contracts for the provision of Probation services but, as the Report on January 13 hinted, this is now with a termination date at the end of May rather than the end of March.
1. National Agreement on Staff Transfers & Protections:
This is due to be tabled at the National Negotiating Council (NNC) tomorrow for ratification. It no longer contains the Staff Assignment process which was imposed last November. The dates in the Agreement are having to be amended to reflect the move back from April 1st to June 1st.
2. Future Negotiating & Consultation Structures:
As Trusts disappear, so the Employers side of the NNC will need to be re-constituted as a very minimum. NOMS have now sent the unions a new draft Constitution to consider – essentially just changing the Employers side to reflect the existence of the NPS and the CRCs. But consideration will also need to be given as to whether to have just one negotiating body for both the NPS and the CRCs, or one for each. There are pros and cons with either model. The relative numbers of seats on the union side may change if there were two bodies - depending on membership numbers - Napo/UNISON. Two separate negotiating bodies might seem more likely for two reasons.
Firstly, much of what will become established terms and conditions in the NPS will not be applicable to the CRCs (see below under Measures). There will need to be harmonisation of many policies with the Civil Service and it will not be possible or appropriate to apply these to the CRCs. There will also be other considerations such as the public sector pay policy which again will not be extended to cover CRCs.
Secondly, it may be dangerous to seek to tie CRCs in with negotiations over pay and conditions where their control was limited. A recent case (Alemo-Herron- v- Parkwood) in the Court of Justice of the EU highlighted the dangers of such a scenario. In that case a transfer to the private sector from a local authority had been conducted under TUPE Regs but the current situation in Probation is thought to be the same. In essence, the CRCs may call foul if they were tied to public sector negotiations in which they had limited say.
However, it must be remembered that all staff will transfer over to the NPS and the CRCs on existing terms and conditions. So even if there were two negotiating bodies at a national level, the starting point for any negotiations would be what was carried over. At least initially, pay for example, would be as is.
A national negotiating body for the NPS would be just that. There will be no local or regional equivalent because it is a national service. In the case of the CRCs, whatever the national negotiating body looks like, there will also need to be JNCs established with each new employer – much as there are now with the Trusts. So in due course new JNC constitutions (probably modelled on what exists now) will need to be agreed and signed. But to do this will require two ‘sides’ , Employers and Staffside and as yet neither exists. On the employers side, there are only CEOs, not yet actually in post. On the union side, the existence of a recognisable Staffside depends on two factors. Firstly whether a CRC is being created out of one or more Trusts. If the former, then there will be the existing JNC Staffside within the Trust which may be a basis. But then, the second critical factor is the split between NPS and CRC, and where the existing union officials at local level end up – which side of the fence. So it's a bit premature to start establishing these negotiating (and consulting) bodies, though it seems prudent to set up some sort of shadow bodies before June 1st - which should be possible in a while.
3.Recognition Agreements:
Linked to the above, new union recognition agreements with the NPS nationally and with CRCs locally will need to be formalised. There is no evidence that the continued recognition of Napo, UNISON and SCOOP/GMB is in any way under threat but nevertheless, this formalisation process will be required. NOMS has provided a draft agreement for the NPS which the unions will need to study. As with the above, signing off these agreements for CRCs, is rather dependant on the two "Sides' of a CRC existing and so this piece of work is unlikely to be possible for some little while yet.
4. Facility Time & also Transitional Arrangements:
The unions have received a draft facilities agreement from NOMS. This will be a matter to be reviewed and revised both nationally and locally. Inevitably it will have to pay at least lip-service (and probably much more) to the Cabinet Office guidelines. But it seems likely that MoJ/NOMS will need to be rather more accommodating than the Guidelines strictly allow in order to achieve their own ends - i.e. the TR Programme. It is to be hoped that there will also be a transitional arrangement to be negotiated with NOMS, since it will be in everyones best interests to have a degree of continuity as Trusts and their staff are split up. It would also seem sensible that, at least whilst CRCs remain in the public sector, there will be some flexibility about member representation as between the NPS and CRCs. This may in part be dependant on the players involved - how amenable the newly appointed CEOs of CRCs and Deputies within NPS are. Any transitional arrangement will need to be negotiated nationally in the first instance - and this discussion hasn't started yet.
5. Staff Commission:
The National Framework on Staff Transfer and Protections commits all parties to "Establishing a Staff Commission to consider issues arising as a direct consequence of the transfer of staff from Probation Trusts to either a CRC or to the NPS" The unions have just received a draft paper from NOMS regarding this. It now has to be discussed and hopefully agreed by the end of March.
Salient features (subject to agreement) :
Participation is voluntary and the Commission will hear appeals only where both parties locally are content to participate.
It is an independent body established to provide a route for dispute resolution
It will not hear appeals against the Staff Assignment Process itself nor appeals against actual assignment
It may hear issues connected with redundancy, alleged detrimental changes, and discrimination to terms and conditions
One main reason for setting it up is to avoid issues arising from the transfer escalating to the level of an Employment Tribunal.
It's likely to have three members - an independent chair, a member nominated by the TU Side and a member with an employer background nominated by NOMS.
The process is likely to follow ACAS guidelines.
It will decide whether HR procedures were fairly carried through by the employer on the basis of agreed criteria
The Commission's decision will be binding on all parties and any outcomes would be expected to be implemented swiftly
6.Interchange Agreement:
As reported on January 13, another commitment achieved through the National Agreement on Staff Transfer is to the development of an Interchange Agreement. Splitting the workforce and having two entirely separate sets of employers can cause havoc in terms of training opportunities, professional development and career advancement. The split may also place staff in roles which are very stressful (probably in the NPS in particular) with increasingly limited opportunities for 'light relief'. These risks to the maintenance of a healthy, efficient and well-trained workforce are recognised by NOMS and this Interchange Agreement is their attempt at moderating these risks. Again, the unions have only just received the first draft to consider. Essentially this looks like a formal secondment system with associated protocols for operation. Further details will be reported in due course.
7. Measures:
Appendix A of the National Agreement on Staff Transfers and Protections is the starting point for considering what Measures will need to be consulted upon both nationally and locally. The introduction explains that consultation must take place (under COSOP). As the new organisations (NPS & CRCs) begin to take shape, these consultations will develop as both consultation and in some instances, negotiation are required with a view to establishing and/or harmonising terms and conditions and policies. Within the NPS there will need to be harmonisation of 35 sets of Trust policies and terms and conditions with those of the Civil Service. Where CRCs are being created out of two, three or four Trusts, there will need to be a harmonisation of two, three or four sets of local policies and terms and conditions. In CRCs being formed effectively out of only one Probation Trust, this exercise will be much more straightforward since no harmonisation exercise will be required.
This second stage of consultations and negotiations relies upon the necessary negotiating and consultation structures being in place (see above). So for CRCs, no actual negotiation on these matters will be possible before June 1st. Some consultation and preparatory work for negotiations may be possible within shadow structures.
At national level, discussions regarding harmonisation with Civil Service policies and terms and conditions have already begun. NOMS have high hopes of having everything in place ready for 1st June where possible, with early negotiation/ratification wherever necessary soon after June 1st. These are likely to prove unrealistic expectations. Some Civil Service policies to which NOMS are seeking alignment are themselves out of date and in need of review/revision. This adds another dimension to the exercise and will involve the Probation unions in a further set of discussions with the other unions operating within NOMS, e.g. PCS and the POA.
However, as policies are reviewed, they are likely to be forwarded to Trusts for information. Some of this work will be of benefit to union members. So, for example, with the Grievance Procedure. The Civil Service procedure in use already in NOMS is similar to those that most union members will recognise in Probation - except it is better in that unions have a seat on the Appeals Panels. Next to be considered is Discipline and Poor Performance (Capability). This is likely to be far more complex and time consuming. It is too early to say if this will be an improvement of general benefit to staff.
A paper entitled 'Being a Civil Servant' has been developed by NOMS with assistance from the PA and the unions. Not everything you need to know on joining the Civil Service but it should answer a lot of queries. It is currently being finalised by NOMS and should be available to those staff assigned to the NPS very soon.
8. From now until May 31st:
Now that the timetable has been adjusted back to June 1st for the creation of the NPS and the CRCs, more is likely to be done by existing employers (the Trusts). For example, the re-allocation of cases and, from April 1st, the allocation of new cases in a different way using the, as yet incomplete, Risk of Serious Recidivism (RSR) tool. It is possible also that some staff will need to be moved around to accommodate these changes. All of this is properly within the operational remit of employers but any such changes should be consulted upon in advance of implementation and they should also be risk assessed under Health & Safety legislation - Management of Health & Safety at Work Regs.
9. Train the Trainers - or - Training Trusts in TR (TTT):
A series of events is being held around the country for volunteers who will then return to Trusts to cascade this training down to all staff. This will be done through a series of training and briefing events. The aim is to prepare all staff for the new ways of working and the new organisations themselves. Amongst other things, this will include a whole raft of new operating procedures post-split - case-allocation, risk escalation, breach, parole reports, recall, revocation etc. These have been issued but bear all the hallmarks of hurried preparation. The starting point obviously isn't a good one i.e a large gap between two organisations, which everybody recognises will create additional problems. The new procedures, as solutions, are less than perfect. This is recognised by NOMS and they are subject to change - which is not entirely helpful when the local training is due to start quite shortly.
10. A word on Continuity of Service:
This concept is covered in Part A (A1) of the NNC Handbook.
Continuous Service is relevant in respect of annual leave, sickness payments, maternity leave and the calculation of entitlement to redundancy compensation and the calculation of notice periods.
The last paragraph in this section sums the position up as follows:
"9.For the purpose of assessing continuing service, all previous continuous service with any probation board or predecessor committee or any employer where the probation board exercises its discretion shall be aggregated."
This continuity carries across to new employment under COSOP.
The situation becomes a little complicated where staff subsequently change jobs.
The National Agreement on Staff Transfer and Protections protects this position for a period of seven years, post share sale, for anyone who moves jobs between CRCs or from the NPS to a CRC. It is protected for all staff moving between organisations, in either direction, up to the point of share sale.
The one exception to this protection is in respect of staff changing jobs and moving from a CRC to the NPS, post share sale. Here, protection cannot be extended because the Ministry of Justice is bound, as all Government Departments are, by additional requirements such as the Constitutional Reform and Governance Act which deals with the recruitment of Civil Servants (e.g. Recruitment Principles regarding Fair and Open Competition) and the MoJ's power are limited to those delegated to it under the Civil Service Management Code. Those powers do not extend to recognising new recruits' continuity of employment with previous, non-Civil Service Bodies. This is a disappointing fact of life but, on the other hand, some of the Civil Service policies, e.g. over maternity leave, are more generous and this will have a compensatory effect under such circumstances. The position in respect of redundancy is unclear since the NPS will need to develop a new policy for Probation staff joining the NPS from Trusts. This should afford the opportunity to establish an improved position.
Glossary:
COSOP - Cabinet Office Statement of Practice on Staff Transfers in the Public Sector
1. National Agreement on Staff Transfers & Protections:
This is due to be tabled at the National Negotiating Council (NNC) tomorrow for ratification. It no longer contains the Staff Assignment process which was imposed last November. The dates in the Agreement are having to be amended to reflect the move back from April 1st to June 1st.
2. Future Negotiating & Consultation Structures:
As Trusts disappear, so the Employers side of the NNC will need to be re-constituted as a very minimum. NOMS have now sent the unions a new draft Constitution to consider – essentially just changing the Employers side to reflect the existence of the NPS and the CRCs. But consideration will also need to be given as to whether to have just one negotiating body for both the NPS and the CRCs, or one for each. There are pros and cons with either model. The relative numbers of seats on the union side may change if there were two bodies - depending on membership numbers - Napo/UNISON. Two separate negotiating bodies might seem more likely for two reasons.
Firstly, much of what will become established terms and conditions in the NPS will not be applicable to the CRCs (see below under Measures). There will need to be harmonisation of many policies with the Civil Service and it will not be possible or appropriate to apply these to the CRCs. There will also be other considerations such as the public sector pay policy which again will not be extended to cover CRCs.
Secondly, it may be dangerous to seek to tie CRCs in with negotiations over pay and conditions where their control was limited. A recent case (Alemo-Herron- v- Parkwood) in the Court of Justice of the EU highlighted the dangers of such a scenario. In that case a transfer to the private sector from a local authority had been conducted under TUPE Regs but the current situation in Probation is thought to be the same. In essence, the CRCs may call foul if they were tied to public sector negotiations in which they had limited say.
However, it must be remembered that all staff will transfer over to the NPS and the CRCs on existing terms and conditions. So even if there were two negotiating bodies at a national level, the starting point for any negotiations would be what was carried over. At least initially, pay for example, would be as is.
A national negotiating body for the NPS would be just that. There will be no local or regional equivalent because it is a national service. In the case of the CRCs, whatever the national negotiating body looks like, there will also need to be JNCs established with each new employer – much as there are now with the Trusts. So in due course new JNC constitutions (probably modelled on what exists now) will need to be agreed and signed. But to do this will require two ‘sides’ , Employers and Staffside and as yet neither exists. On the employers side, there are only CEOs, not yet actually in post. On the union side, the existence of a recognisable Staffside depends on two factors. Firstly whether a CRC is being created out of one or more Trusts. If the former, then there will be the existing JNC Staffside within the Trust which may be a basis. But then, the second critical factor is the split between NPS and CRC, and where the existing union officials at local level end up – which side of the fence. So it's a bit premature to start establishing these negotiating (and consulting) bodies, though it seems prudent to set up some sort of shadow bodies before June 1st - which should be possible in a while.
3.Recognition Agreements:
Linked to the above, new union recognition agreements with the NPS nationally and with CRCs locally will need to be formalised. There is no evidence that the continued recognition of Napo, UNISON and SCOOP/GMB is in any way under threat but nevertheless, this formalisation process will be required. NOMS has provided a draft agreement for the NPS which the unions will need to study. As with the above, signing off these agreements for CRCs, is rather dependant on the two "Sides' of a CRC existing and so this piece of work is unlikely to be possible for some little while yet.
4. Facility Time & also Transitional Arrangements:
The unions have received a draft facilities agreement from NOMS. This will be a matter to be reviewed and revised both nationally and locally. Inevitably it will have to pay at least lip-service (and probably much more) to the Cabinet Office guidelines. But it seems likely that MoJ/NOMS will need to be rather more accommodating than the Guidelines strictly allow in order to achieve their own ends - i.e. the TR Programme. It is to be hoped that there will also be a transitional arrangement to be negotiated with NOMS, since it will be in everyones best interests to have a degree of continuity as Trusts and their staff are split up. It would also seem sensible that, at least whilst CRCs remain in the public sector, there will be some flexibility about member representation as between the NPS and CRCs. This may in part be dependant on the players involved - how amenable the newly appointed CEOs of CRCs and Deputies within NPS are. Any transitional arrangement will need to be negotiated nationally in the first instance - and this discussion hasn't started yet.
5. Staff Commission:
The National Framework on Staff Transfer and Protections commits all parties to "Establishing a Staff Commission to consider issues arising as a direct consequence of the transfer of staff from Probation Trusts to either a CRC or to the NPS" The unions have just received a draft paper from NOMS regarding this. It now has to be discussed and hopefully agreed by the end of March.
Salient features (subject to agreement) :
Participation is voluntary and the Commission will hear appeals only where both parties locally are content to participate.
It is an independent body established to provide a route for dispute resolution
It will not hear appeals against the Staff Assignment Process itself nor appeals against actual assignment
It may hear issues connected with redundancy, alleged detrimental changes, and discrimination to terms and conditions
One main reason for setting it up is to avoid issues arising from the transfer escalating to the level of an Employment Tribunal.
It's likely to have three members - an independent chair, a member nominated by the TU Side and a member with an employer background nominated by NOMS.
The process is likely to follow ACAS guidelines.
It will decide whether HR procedures were fairly carried through by the employer on the basis of agreed criteria
The Commission's decision will be binding on all parties and any outcomes would be expected to be implemented swiftly
6.Interchange Agreement:
As reported on January 13, another commitment achieved through the National Agreement on Staff Transfer is to the development of an Interchange Agreement. Splitting the workforce and having two entirely separate sets of employers can cause havoc in terms of training opportunities, professional development and career advancement. The split may also place staff in roles which are very stressful (probably in the NPS in particular) with increasingly limited opportunities for 'light relief'. These risks to the maintenance of a healthy, efficient and well-trained workforce are recognised by NOMS and this Interchange Agreement is their attempt at moderating these risks. Again, the unions have only just received the first draft to consider. Essentially this looks like a formal secondment system with associated protocols for operation. Further details will be reported in due course.
7. Measures:
Appendix A of the National Agreement on Staff Transfers and Protections is the starting point for considering what Measures will need to be consulted upon both nationally and locally. The introduction explains that consultation must take place (under COSOP). As the new organisations (NPS & CRCs) begin to take shape, these consultations will develop as both consultation and in some instances, negotiation are required with a view to establishing and/or harmonising terms and conditions and policies. Within the NPS there will need to be harmonisation of 35 sets of Trust policies and terms and conditions with those of the Civil Service. Where CRCs are being created out of two, three or four Trusts, there will need to be a harmonisation of two, three or four sets of local policies and terms and conditions. In CRCs being formed effectively out of only one Probation Trust, this exercise will be much more straightforward since no harmonisation exercise will be required.
This second stage of consultations and negotiations relies upon the necessary negotiating and consultation structures being in place (see above). So for CRCs, no actual negotiation on these matters will be possible before June 1st. Some consultation and preparatory work for negotiations may be possible within shadow structures.
At national level, discussions regarding harmonisation with Civil Service policies and terms and conditions have already begun. NOMS have high hopes of having everything in place ready for 1st June where possible, with early negotiation/ratification wherever necessary soon after June 1st. These are likely to prove unrealistic expectations. Some Civil Service policies to which NOMS are seeking alignment are themselves out of date and in need of review/revision. This adds another dimension to the exercise and will involve the Probation unions in a further set of discussions with the other unions operating within NOMS, e.g. PCS and the POA.
However, as policies are reviewed, they are likely to be forwarded to Trusts for information. Some of this work will be of benefit to union members. So, for example, with the Grievance Procedure. The Civil Service procedure in use already in NOMS is similar to those that most union members will recognise in Probation - except it is better in that unions have a seat on the Appeals Panels. Next to be considered is Discipline and Poor Performance (Capability). This is likely to be far more complex and time consuming. It is too early to say if this will be an improvement of general benefit to staff.
A paper entitled 'Being a Civil Servant' has been developed by NOMS with assistance from the PA and the unions. Not everything you need to know on joining the Civil Service but it should answer a lot of queries. It is currently being finalised by NOMS and should be available to those staff assigned to the NPS very soon.
8. From now until May 31st:
Now that the timetable has been adjusted back to June 1st for the creation of the NPS and the CRCs, more is likely to be done by existing employers (the Trusts). For example, the re-allocation of cases and, from April 1st, the allocation of new cases in a different way using the, as yet incomplete, Risk of Serious Recidivism (RSR) tool. It is possible also that some staff will need to be moved around to accommodate these changes. All of this is properly within the operational remit of employers but any such changes should be consulted upon in advance of implementation and they should also be risk assessed under Health & Safety legislation - Management of Health & Safety at Work Regs.
9. Train the Trainers - or - Training Trusts in TR (TTT):
A series of events is being held around the country for volunteers who will then return to Trusts to cascade this training down to all staff. This will be done through a series of training and briefing events. The aim is to prepare all staff for the new ways of working and the new organisations themselves. Amongst other things, this will include a whole raft of new operating procedures post-split - case-allocation, risk escalation, breach, parole reports, recall, revocation etc. These have been issued but bear all the hallmarks of hurried preparation. The starting point obviously isn't a good one i.e a large gap between two organisations, which everybody recognises will create additional problems. The new procedures, as solutions, are less than perfect. This is recognised by NOMS and they are subject to change - which is not entirely helpful when the local training is due to start quite shortly.
10. A word on Continuity of Service:
This concept is covered in Part A (A1) of the NNC Handbook.
Continuous Service is relevant in respect of annual leave, sickness payments, maternity leave and the calculation of entitlement to redundancy compensation and the calculation of notice periods.
The last paragraph in this section sums the position up as follows:
"9.For the purpose of assessing continuing service, all previous continuous service with any probation board or predecessor committee or any employer where the probation board exercises its discretion shall be aggregated."
This continuity carries across to new employment under COSOP.
The situation becomes a little complicated where staff subsequently change jobs.
The National Agreement on Staff Transfer and Protections protects this position for a period of seven years, post share sale, for anyone who moves jobs between CRCs or from the NPS to a CRC. It is protected for all staff moving between organisations, in either direction, up to the point of share sale.
The one exception to this protection is in respect of staff changing jobs and moving from a CRC to the NPS, post share sale. Here, protection cannot be extended because the Ministry of Justice is bound, as all Government Departments are, by additional requirements such as the Constitutional Reform and Governance Act which deals with the recruitment of Civil Servants (e.g. Recruitment Principles regarding Fair and Open Competition) and the MoJ's power are limited to those delegated to it under the Civil Service Management Code. Those powers do not extend to recognising new recruits' continuity of employment with previous, non-Civil Service Bodies. This is a disappointing fact of life but, on the other hand, some of the Civil Service policies, e.g. over maternity leave, are more generous and this will have a compensatory effect under such circumstances. The position in respect of redundancy is unclear since the NPS will need to develop a new policy for Probation staff joining the NPS from Trusts. This should afford the opportunity to establish an improved position.
Glossary:
COSOP - Cabinet Office Statement of Practice on Staff Transfers in the Public Sector
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