9. Annex B – Contraventions of the Code of Practice
Process for Code of Practice Contraveners
9.1 This section describes the informal and formal escalation stages of investigation when NHS Employers becomes aware of recruitment activity that contravenes the Code of Practice.
9.2 NHS Employers receives information about an agency, either through random checks or another manner, that indicates a potential breach of the Code of Practice.
9.3 NHS Employers carries out desktop research and other checks (for example a check of Companies House and the agency website) to determine whether there is any evidence to pursue with the agency.
9.4 If appropriate, the agency is contacted via email to clarify their business activities and is given ten days to respond.
9.5 The agency response is considered and depending on the response, the informal case is either closed or a formal investigation begins.
9.6 Where a formal investigation is required, any relevant information including media articles, social media activity, promotional/website material from the accused party in relation to alleged wrongdoing or contact from an employer, framework provider, trade union representative or other stakeholder should be collated and saved securely.
9.7 The above information is outlined in a formal letter.
9.8 The formal signed letter should be addressed to the Managing Director and sent to the agency/organisation no later than ten working days following the end of the informal process. This step in the process is to understand the facts surrounding the alleged breach, outline the initial findings from the informal stage and collate potential evidence in relation to the agency/organisation concerned.
9.9 The agency will have ten working days to formally respond. If there are mitigating circumstances or the need for the agency to investigate practices internally, NHS Employers may consider an extension to the ten-day response time frame.
9.10 The reply from the agency and any supporting evidence will be reviewed and considered against the guiding principles and best practice benchmarks of the Code of Practice. NHS Employers may consider whether any of the points in the 'Opportunity to correct behaviour' conduct' are met and if the formal procedure needs to continue.
9.11 If NHS Employers is satisfied behaviour has been corrected, NHS Employers closes the case and responds to the agency within ten working days.
9.12 If behaviours have not been rectified, NHS Employers contacts any known organisations whom the agency has worked with to help establish any other areas of non-compliance with the Code of Practice.
9.13 NHS Employers formally writes to the agency to outline next steps, as below, within ten working days.
9.14 A NHS Employers panel is convened, and a date is set for the panel to meet.
9.15 The panel receives relevant documentation one week before the panel meeting.
9.16 The panel meets and decides on whether there is any further information required and can at this stage request to meet with the agency.
9.17 The panel then decides any appropriate sanctions, which may include a decision to remove the agency from the agencies list or allow it to remain with closer monitoring and/or appropriate corrective action undertaken by the agency.
9.18 NHS Employers formally writes to the agency outlining the outcome of the panel within ten days of the panel meeting.
9.19 If the agency is found to be in breach of the Code of Practice, they will be notified of removal from the list.
9.20 If the panel is unable to prove the recruitment activity contravenes the Code of Practice, the agency will be advised that they will remain on the list of agencies however will be subject to monthly spot checks for one year.
9.21 The Scottish Government and NHS Boards will be informed of any removal so that they can take any appropriate action concerning agency contracts.
9.22 At this stage, the agency can appeal to NHS Employers by providing any further relevant information for consideration.
9.23 If the agency appeal is upheld, the agency will be placed back on the list and all relevant bodies informed.
9.24 Generally, a six-month waiting period comes into effect before the agency/ employing organisation can apply to be placed back on the list. It is at the discretion of NHS Employers on whether this waiting period should be extended, or any applications should be immediately refused in future. This will consider repeated breaches, the measures put in place to prevent future breaches and the agency/organisation's co-operation in any investigations.
9.25 To re-apply, an agency will need to provide evidence that it has changed its business practice.
9.26 The agency will either be accepted or declined.
9.27 If declined, the agency will need to wait an additional six months before re-applying.
9.28 Recruitment agencies that are removed from the Code of Practice list can lodge an appeal against the decision to NHS Employers. All appeals must be made in writing and the agency must set out the grounds for their appeal, with any written evidence to support their case.
9.29 The purpose of the appeal procedure is to review the process and reason for the decision to remove an agency from the list when the agency believes the process was improperly administered or the decision was unjustified. In most circumstances, the agency would have been involved in the investigation about their removal from the list, for example, when NHS Employers needs to clarify details of events or the agency's operating procedures. Agencies are always given the opportunity to comment on the information and provide an explanation of their activity.
Action by appeals panel
9.30 If an agency appeals against removal from the list, a formal appeals panel will meet to consider the appeal. The panel includes:
- a senior manager from NHS Employers who has not been involved in the original investigation and decision
- a member of the NHS Employers Policy Board
- a representative from the Department of Health and Social Care
- a representative from the appropriate Devolved Administration in the case of appeals by agencies in that country.
9.31 The appeals process should be completed within six weeks of receiving the written appeal unless there are circumstances that warrant an extension. In these circumstances, the appeals panel should inform the organisation in writing of the reasons, and where possible, the timescale of the delay.
9.32 The panel members will consider the appeal submission together with the original papers supplied by the NHS Employers' investigation team. Panel members can ask for additional information or clarification from either the agency or the NHS Employers' investigation team. Panel members do not have to consider the appeal together in a formal face-to-face meeting but should meet if requested by one of the panel members.
9.33 Consideration should be given to the following:
- whether the primary investigators clearly demonstrated that a breach of the Code of Practice has taken place - the evidence should support this - and the decision to remove the agency from the list is proportionate
- whether there is any possibility that the information on which the original decision was based is incorrect
- whether the organisation has been given an opportunity to respond and provide an explanation of their actions
- whether the organisation disproved the evidence or raised serious doubt about its validity
- whether the process has been handled properly by NHS Employers.
9.34 The panel will make a majority decision whether to uphold or reject the appeal. It may also make other specific recommendations. When the review is completed, the agency will be notified of the outcome in writing by NHS Employers.
9.35 If the appeal is upheld, the agency will be put back on the list of agencies and NHS Boards will be notified.