International recruitment of health and social care personnel: Scottish Code of Practice - August 2022 (revised)

Update to the Scottish Code of Practice for the international recruitment of health and social care which ensure that all international recruitment undertaken in Scotland is ethical.

9. Annex B – Process for code of practice contraveners

9.1 This section describes an abridged version of the informal and formal escalation stages of investigation when NHS Employers becomes aware of recruitment activity that contravenes the Code of Practice. The detailed process is housed securely by NHS Employers.

9.2 If there are any concerns about potential breaches to the code, please contact

9.3 Employing organisations who are reported as being in breach of the code will also be investigated. This will include the informal stage as outlined below as well as discussions with DHSC, NHSEI, and possible additional investigations if activities were supported by a recruitment organisation, agency or collaboration as outlined below.

9.4 NHS employing organisations are reminded that NHS England nursing, midwifery and AHP international recruitment funding is currently provided on the condition that they adhere to the code of practice in all international recruitment activity.

Informal stage

9.5 NHS Employers receives information about an organisation, either through random checks or another manner, that indicates a potential breach of the Code of Practice.

9.6 NHS Employers carries out desktop research and other checks including but not limited to conducting a spot check on Companies House, the organisation website and social media presence to determine whether there is any evidence to pursue further investigation. NHS Employers also considers if any other breaches or investigations have been previously recorded as well as their knowledge test as part of their initial application to the code of practice.

9.7 If appropriate, the organisation is contacted via email to clarify their business activities, how it may have breached the code of practice and is given ten working days to respond.

9.8 The organisation's response is considered and depending on the response, NHS Employers may consider:

  • to close the informal investigation.
  • if the organisation may be given an opportunity to correct their behaviour or
  • if the formal procedure needs to begin.

Formal stage

9.9 Where a formal investigation is required, any relevant information (including media articles, social media activity, promotional/website material) from the organisation under investigation in relation to alleged wrongdoing or contact from an employer, framework provider, trade union representative or other stakeholder will be collated and saved securely and in accordance with any relevant data protection laws to aid future investigations.

9.10 This information will be shared with the organisation in a formal letter.

9.11 The formal letter will be addressed to the most senior person listed on the organisation details as provided to NHS Employers and sent to the organisation. . 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 organisation concerned.

9.12 The organisation will have ten working days to formally respond. If there are mitigating circumstances or the need for the organisation to investigate practices internally, NHS Employers may consider a short extension to the ten-day response time frame at their discretion.

9.13 The reply from the organisation and any supporting evidence will be reviewed and considered against the guiding principles and best practice benchmarks of the Code of Practice.

9.14 If behaviours have not been rectified, NHS Employers may contact any known employing organisations whom the organisation has worked with to help establish any other areas of non-compliance with the code of practice.

9.15 NHS Employers formally writes to the organisation to outline next steps, as below.

9.16 An independent panel is convened, and a date is set for the panel to meet.

9.17 The organisation is given 10 working days to submit any evidence they wish an independent panel to consider. The independent panel will recommend sanctions to the DHSC, which may include temporary or permanent removal from the ethical recruiters list.

9.18 The panel receives relevant documentation one week before the panel meeting.

9.19 The panel meets with representation from both the organisation and NHS Employers to present their cases.

9.20 The panel then recommends any appropriate sanctions to DHSC. If found in breach of the code one of the recommended sanctions could be to remove the organisation from the ethical recruiters list for a period of time or permanently.

9.21 If the panel is unable to prove the recruitment activity contravenes the code of practice, recommended sanctions/next steps which may include but are not limited to one or more of the following:

  • The organisation will be advised that they will remain on the ethical recruiters list however will be subject to monthly spot checks for up to one year, and/or additional training imposed.
  • A formal warning that a repeat of the same activity (or other code breaches) will result in removal from the code of practice.
  • Requirement for additional training and a re-sit of the knowledge test.

9.22 DHSC approves the independent panel's recommended sanction and/or next steps.

9.23 NHS Employers formally writes to the organisation outlining the outcome and decision on any sanction(s).

9.24 The Scottish Government and NHS Boards will be informed of any removal so that they can take any appropriate action concerning agency contracts.

9.25 At this stage, the agency can appeal to NHS Employers by providing any further relevant information for consideration within 10 working days.

9.26 If the agency appeal is upheld, the agency will be placed back on the list and all relevant bodies informed.

9.27 Generally, a one year waiting period comes into effect before the recruitment organisation, agency or collaboration can apply to be placed back on the list. However, the sanction may be to permanently remove the organisation from the code of practice.

9.28 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 organisation's co-operation in any investigations.

9.29 To re-apply, an organisation will need to provide evidence that it has changed its business practice.

9.30 The organisation will either be accepted or declined.

9.31 If declined, the organisation will need to wait an additional 12 months before re-applying.

Appeal procedure

9.32 Recruitment organisations 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 organisation must set out the grounds for their appeal, with any written evidence to support their case within 10 working days.

9.33 The purpose of the appeal procedure is to review the process and reason for the decision to remove an organisation from the list when the organisation believes the process was improperly administered or the decision was unjustified.

9.34 In most circumstances, the organisation 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 organisation's operating procedures. Organisations are always given the opportunity to comment on the information and provide an explanation of their activity.

Action by appeals panel

9.35 If an organisation appeals against removal from the list, a formal appeals panel will meet to consider the appeal. The panel includes:

  • a NHS Employers staff member at director
  • NHS Confederation staff member at assistant director level
  • NHS Employers staff member at programme lead/manager level

9.36 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.

9.37 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 organisation or the NHS Employers' investigation team.

9.38 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.

9.39 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 organisation 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.

9.40 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 organisation will be notified of the outcome in writing by NHS Employers.

9.41 If the appeal is upheld, the sanction will be removed or adjusted to the appeals panel decision and a relevant stakeholders will be notified of any sanctions applied.



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