Health and Care (Staffing) (Scotland) Act 2019: statutory guidance

This statutory guidance has been issued by the Scottish Ministers to accompany the Health and Care (Staffing) (Scotland) Act 2019. The guidance will support relevant organisations in meeting requirements placed on them by the Act and relevant secondary legislation.

6. Agency Reporting

6.1 Which sections of the Act is this chapter about?

This chapter provides further detail on section 12IB of the 1978 Act, duty to ensure appropriate staffing: agency workers (referred to here as the “section 12IB duty”), which is inserted by section 4 of the Act.

There are other links to useful information embedded in this chapter; these are denoted in blue text.

6.2 Who does this chapter apply to?

The following organisations must comply with the duty contained in this chapter:

  • All geographical Health Boards;
  • NHS National Services Scotland (referred to in the Act as the “Agency”); and
  • Special Health Boards who deliver direct patient care, i.e., NHS 24, the Scottish Ambulance Service Board, the State Hospitals Board for Scotland and the National Waiting Times Centre Board.

These are referred to as “relevant organisations” in this chapter.

6.3 In what settings and to which staff does this chapter apply?

The section 12IB duty applies to all NHS functions provided by all professional disciplines (chapter 2, introduction provides more details on professional disciplines covered by the Act). They are not limited to the types of health care listed in section 12IK of the Act in relation to the section 12IJ Duty to follow the common staffing method.

Accountability for all the duties covered in this chapter remains with the relevant organisation and not with individuals who may be charged with carrying out certain actions.

6.4 What is this chapter about?

Section 12IB of the Act relates to the use of agency workers by relevant organisations where they are needed in order to comply with the section 12IA duty to ensure appropriate staffing. It states that the amount to be paid to secure the services of an agency worker during a period should not exceed 150% of the amount that would be paid to a full-time equivalent employee of the relevant organisation to fill the equivalent post for the same period.

However, where, in a quarterly reporting period, a relevant organisation does pay an amount higher than 150%, the relevant organisation must report to the Scottish Ministers as soon as practicable after the end of that reporting period:

  • the number of occasions in that period on which it has paid more than 150%;
  • the amount paid on each occasion (expressed as a percentage of the amount that would be paid to a full-time equivalent employee of the relevant organisation to fill the equivalent post for the same period); and
  • the circumstances that have required the higher amount to be paid.

6.5 What is an agency worker?

The Act defines an agency worker as being “within the meaning of the Agency Workers Regulations 2010”. Any staff directly employed by the relevant organisation are not included within this meaning.

6.6 What must be reported?

Section 12IB of the 1978 Act requires relevant organisations to report on the number of occasions that it has paid more than 150% of the amount that would be paid to a full-time equivalent employee of that organisation to fill the equivalent post for the same period. The report should therefore detail the number of single shifts where it has required to exceed this amount to secure the services of any agency worker.

The cost of using an agency worker must be compared to the equivalent employee for whom the agency worker is covering. To ensure that an accurate and equitable comparison can be made, the Scottish Government will provide all relevant organisations with figures for each band / grade of employee. This will include the gross pay of the employee plus employer pension and national insurance contributions. Any expenses that are recoverable by the employee in respect of working that shift should be added to the figure.

To calculate the cost of securing the services of an agency worker, the total amount paid to secure that worker for the shift should be used.

6.7 What is meant by “the circumstances that have required the higher amount to be paid”?

This means the organisation will need to provide an explanation for each occasion as to why a higher-cost agency worker has been used.

6.8 What are the dates for the quarterly reports?

Quarterly reporting periods run from:

  • 01 April to 30 June;
  • 01 July to 30 September;
  • 01 October to 31 December; and
  • 01 January to 31 March, of each year.

Reports should be submitted by the end of one month following the end of the reporting period, i.e. by 31 July, 31 October, 31 January and 30 April respectively.

6.9 What will the format of the report be?

To promote consistent reporting across relevant organisations, the Scottish Government will provide a report template. Each relevant organisation should submit one report to cover all NHS functions and professional disciplines.

6.10 Will these reports be published?

The Act states that Scottish Ministers must publish in such a manner and at such intervals they consider appropriate:

  • information from relevant organisations on the amount spent on all agency workers; and
  • the reports received from relevant organisations under this section (12IB) of the 1978 Act.

Reports will undergo suitable quality assurance procedures prior to publication, along with ensuring all requirements regarding data protection legislation are adhered to. This will include consideration of whether personal information regarding individuals could be determined and anonymising data.



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