4. Best Practice Benchmarks
4.1 It is expected that all health and social care sector employing organisations, recruitment organisations, agencies, collaborations and contracting bodies will comply with the Code of Practice and will apply the best practice benchmarks set out in this section.
4.2 These best practice benchmarks should be read in conjunction with NHS Employers' International Recruitment Toolkit. The toolkit is designed to encourage and enable supportive practices and processes for the recruitment of international staff across a wide range of professions.
4.3 Although the toolkit was developed for employers in England, the general principles within the toolkit are applicable in all the nations of the UK.
There is no active recruitment of health and social care personnel from countries on the red country list.
4.4 The red country list is drawn from the WHO Health Workforce Support and Safeguard List 2020. No active recruitment will be undertaken from countries on the red country list by Scottish or UK health or social care employing organisations, recruitment organisations, agencies, collaborations, contracting bodies or by any international agency sub-contracted to that organisation in Scotland or UK. Government-to-government agreements may be signed by the UK Government with partner countries to support managed recruitment activities and ensure they are undertaken in compliance with the terms of that agreement. When a government-to- government agreement is signed with a red list country it is moved to the amber country list.
4.5 The red and amber country list is available at Annex A and on the NHS Employers website. The WHO Health Workforce Support and Safeguards List 2020 is updated by the World Health Assembly every three years. It may also be updated on an ad hoc basis, for example, in response to new government to government agreements being signed. Government to government agreements will be developed in line with WHO guidance on bilateral agreements.
4.6 Employers, recruitment organisations, agencies, collaborations and contracting bodies should check the country list for updates before any international recruitment drive.
4.7 Health and social care organisations may consider direct applications from individuals resident in a country on the red or amber list if that individual is making an application on their own behalf and not using a third party, such as a recruitment organisation, agency or collaboration.
4.8 In determining the country from which an international candidate is applying from, health and social care employers should consider the applicant country of residence not their nationality.
4.9 When considering how to handle direct applications from individuals resident in red or amber list countries, employers should be mindful of their responsibilities under the Equality Act 2010 not to discriminate or treat applicants differently due to their race (which includes nationality).
All international recruitment by health and social care employers, agencies, recruitment organisations, recruitment collaborations and contracting bodies will follow good recruitment practice and demonstrate a sound ethical approach.
4.10 Health and social care employers, when using a recruitment organisation, agency, or collaboration should only contract organisations that comply with the Code of Practice. A list of those agencies, recruitment organisations and recruitment collaborations can be found on the NHS Employers website www.nhsemployers.org.
4.11 The international recruitment frameworks, including Workforce Alliance and Healthtrust Europe ensure compliance with NHS pre-employment standards and grant access to a wide range of experienced international recruitment organisations that all operate at a high standard of quality. NHS National Services Scotland can provide further information about frameworks in Scotland.
4.12 The employer will be fully involved in the recruitment process, which will follow best practice in recruitment procedures.
4.13 All international recruitment will be sensitive to local health and care needs so that international recruitment from any country should not weaken local health and care provision.
4.14 A recruitment organisation, agency or collaboration will be removed from the ethical recruiters list if, following an investigation, it is found to be breaching the principles of the Code of Practice. This process is set out in Annex B.
4.15 A prerequisite of being on any international recruitment framework is to be on the ethical recruiter list. Any agency which is removed from the ethical recruiter list will be removed from the international recruitment framework.
International health and social care personnel will not be charged fees for recruitment services in relation to gaining employment in Scotland
4.16 It is illegal under section 6(1) of the Employment Agencies Act 1973, for any recruitment organisation, agency or collaboration based in Great Britain to charge a fee for providing a work-finding service to any person seeking a job role in the UK. Any such organisation charging fees to an individual for a work-finding service will be reported to the Employment Agency Standards Inspectorate (EAS) using the contact details provided at Annex C.
4.17 The EAS has a Great Britain wide remit, however any concerns relating to fees or conduct of non-Great Britain based agencies can also be reported to the EAS using the contact details provided at Annex C.
4.18 Any costs incurred by a recruitment organisation, agency or collaboration will be incorporated into the negotiated fee charged to employers. At their discretion, employers may meet the Visa fees a candidate may incur to exit their home country/enter UK and/or any professional registration fees.
4.19 Employers will not contract recruitment organisations, agencies or collaboration that charge fees to candidates wishing to be considered for recruitment in Scotland. Any recruitment organisation that sub-contract to agencies outside the UK, should not use non-UK agencies if that agency charges applicants fees.
All international health and social care personnel will have the appropriate level of English language to enable them to undertake their role effectively and to meet registration requirements of the appropriate regulatory body.
4.20 If a regulatory body requires an assessed competency in English language for the applicant to be eligible for registration, this should be achieved where possible, prior to selection interview.
4.21 All potential employees will be able to communicate effectively in English to practice safely and to communicate with patients, clients, carers, family and colleagues.
4.22 It is lawful for employers to apply conditions relating to a candidate's linguistic ability because of the nature of the post to be filled.
4.23 The Code of Practice on the English language requirements for public sectorworkers, aims to help public authorities to meet their obligations under Part 7 of the Immigration Act 2016.
All appointed international health and social care personnel must be registered with the appropriate UK regulatory body
4.24 Candidates should be advised of the requirements to practice in the UK and how to obtain relevant professional registration and be signposted to the relevant regulatory organisation. It is the responsibility of the individual recruit to progress the registration process, with support from the relevant regulatory body. Employers and contracting bodies should continue to communicate with the recruit to make sure they are clear about the process to avoid unnecessary delays.
4.25 Candidates should be strongly advised to commence the registration process in good time and if possible before applying for a post (with the exception of registration with Scottish Social Services Council (SSSC) as this cannot be undertaken until employment is secured. See Annex D for contact details). If a candidate does not have registration at the time of appointment, employers and contracting bodies should factor this in when agreeing contracts and start dates. Employers and contracting bodies should consider approaching the appropriate regulatory body early in the recruitment process. Early insight on upcoming demand for registration supports the professional regulator to manage capacity.
4.26 Employers and contracting bodies must ensure that confirmation of professional registration, or notification of any stipulated period of supervised practice, is received prior to the candidate taking up the post where this is stipulated by the regulatory body.
4.27 Candidates should be advised of the importance of professional support, medical defence and representation from membership representative bodies.
All international health and social care personnel required to undertake supervised practice, if required to do so by a regulatory body, should be fully supported in this process.
4.28 To enable the health or social care personnel to provide safe and effective care they will be appropriately supervised and the employer will take active steps to ensure the workplace environment is one in which all staff can demonstrate their competence.
4.29 The health or social care personnel will not be charged for any part of supervised practice and will be employed on the same terms and conditions of employment as other trained employees. Employers are encouraged to recognise previous relevant experience.
4.30 The health or social care personnel will have appropriate opportunities to reach the required standard for UK registration and will be objectively and fairly assessed.
All international health and social care personnel will undergo the normal occupational health assessment prior to commencing employment.
4.31 All employment offers will be made subject to occupational health clearance.
4.32 Occupational health assessment information is confidential and will only be divulged to the relevant occupational health bodies, or as permitted and/or required by law.
4.33 Employers will ensure thorough, sensitive, individual risk assessments are conducted for all new international migrants before they are exposed to work in a clinical environment.
All international health and social care personnel will have appropriate checks undertaken for any criminal convictions as required by legislation.
4.34 Applicants will be informed that any individual who has made a false declaration may be dismissed from their post.
4.35 All appointments should provide references from current and previous employers and/or education provider.
4.36 All personnel will be required to complete a statement informing the employer of any criminal conviction. Employers should undertake the necessary checks for criminal convictions as required under Scottish law.
4.37 Employers and contracting bodies must carry out pre-employment checks seeking to verify that an individual meets the preconditions of the role they are applying for.
4.38 In Scotland, personnel working with children and protected adults will be required to join the "Protecting Vulnerable Groups" (PVG) scheme which is managed by Disclosure Scotland. The application process involves gathering criminal record and other relevant information.
All international health and social care personnel offered a post will have a valid visa or appropriate permit before entry to the UK.
4.39 Personnel offered a post in Scotland must have an appropriate UK visa or appropriate permit that allows them to undertake employment/training.
4.40 The cost of any visa may be met by the employer at their discretion.
4.41 Health and social care employers, recruitment organisations, agencies, collaborations and contracting bodies should share all information about the immigration system and visa application process with candidates as early as possible in the process.
4.42 This should include the rules on bringing dependents to the UK and in particular the rules around sole responsibility and adult dependency to ensure the candidate is clear about the process, what evidence they will be expected to provide and the ramifications if their application is unsuccessful.
Appropriate information about the post being applied for will be made available to a candidate at an early stage so international health and social care personnel can make an informed decision on whether to accept a job offer.
4.43 Health and social care personnel will be provided with all the relevant information about the post they have applied for prior to acceptance to enable an informed decision on whether they should accept a job offer. This should include information on, but not be limited to:
- The job description and person specification.
- The terms and conditions of engagement, including but not limited to; place of work, grading structure, remuneration and intervals when remuneration is paid, days and hours of work, annual leave, sick pay entitlement, notice periods, maternity/paternity pay and entitlement, details of eligibility and support for training (including mandatory training and development),pension and any repayment clause.
- The visa application process.
- the visa application process for dependents, and an understanding of current restrictive immigration rules including the rules on sole responsibility and adult dependency.
- Professional registration processes (contact details for each of the professional regulators and links to further information are provided at Annex D).
- Location of job and indication of likely living costs in that area.
- Access to health services for the candidate and, if relevant, for their family.
- Proximity of relevant religious institutions if applicable.
- Access to education for family members.
- Information on national associations, diaspora groups and communities and relevant trade unions for further support.
- Information on this code of practice and how to raise a complaint if they feel any part of this code is breached during the recruitment process as set out in Annex B.
4.44 Health and social care employing organisations will liaise with recruitment organisations, agencies, collaborations and contracting bodies to ensure all of the above information is provided to the candidate so they can take a fully informed decision on whether to accept a job offer.
4.45 Recruiters, contracting bodies and employers must observe fair and just contractual practices in the employment of international health and care personnel.
4.46 On making the job offer, health and social care employers, recruitment organisations, agencies, collaborations and contracting bodies should provide candidates with the exact terms of the contract under which they will be working to enable the candidate to make an informed decision before accepting the job offer.
4.47 Changes to an employment contract terms and conditions from those originally agreed upon in the signed formal contract must not be made without prior signed consent of the health and social care personnel.
4.48 Contract substitution – where a contract is changed to less favourable terms and conditions without the consent of the health and social care personnel – is in breach of the code.
4.49 Any element of the contract that may differ pre and post-professional registration – such as salary, repayment clauses and any incentives, and reclaim of advances – must be clearly explained in writing before an offer of work is made. This applies regardless of when the formal contract is issued.
4.50 Recruiting organisations must ensure the health and wellbeing of health and social care personnel is respected at all times. An employment contract must not be signed under duress, or because of undue influence or coercion.
4.51 Any concerns about the welfare and employment rights of health or social care personnel must be reported to the appropriate agency to investigate, as set out in Annex C below.
4.52 Repayment clauses may be used in health and social care employment contracts to recover some of the upfront costs that the employer has invested in recruiting health or social care personnel if they leave employment within a given period.
4.53 Any repayment clause which health and social care personnel could be liable to repay must be clearly set out in writing in the employment contract and abide by the following principles:
- The repayment clause must be set out in the contract or job offer letter and explained in full to the candidate before the job is accepted.
- An itemised list of costs to be reclaimed should be provided to show how the amount has been determined.
- Only genuine evidenced, auditable expenses incurred can be reclaimed.
- It must be made clear how the costs will be recouped using an auditable method such as bank transfer or salary sacrifice. Payment in cash is not acceptable.
- Confirmation must be sought that health and social care personnel did not contribute towards the costs/expenses being reclaimed, prior to their arrival in the UK.
- The cost must include only those expenses met by the employer on behalf of health and social care personnel, these include, but are not limited to, relocation expenses, visa fees and regulatory exam fees.
- Costs which the employer is liable to pay as part of the recruitment process must not be reclaimed from health and social care personnel. These include but are not limited to, the agency fee, immigration skills charge, sponsor licence fee, certificate of sponsorship and cost of the interview process.
- Expense costs must not incur any interest on the amount reclaimed.
- Employers should give health and social care personnel the option to repay the costs/expenses through a monthly repayment plan.
- A repayment schedule must be provided and rechargeable costs must taper downwards with time, for example over a 2 year period. An example is set out below:
- 50- 100% of the total itemised expenses if the employee leaves within twelve months of commencing employment.
- 50% of the total itemised expenses if the employee completes 12 months of services but before completing 18 months service.
- 25% of the total itemised expenses if the employee completes 18 months service but before 24 months service.
- No repayable expenses after 24 months of service.
- Employers should be flexible about when they levy the repayment clause and consider waiving them in certain circumstances. Each decision should be made on a case-by-case basis. Examples of when a repayment clause should be waived could include:
- Where the health and wellbeing of a health and social care recruit is being adversely impacted.
- Where the health or social care recruit leaves due to bullying, discrimination or poor working conditions.If a health or social care recruit's circumstances have changed beyond their control, either in the UK or in their home country.
- If the health and social care recruit wishes to move roles for career progression.
All newly appointed international health and social care personnel will be offered appropriate support and induction. As part of this, employers should undertake pre-employment/placement preparation activity to ensure a respectful working environment for all.
4.54 Employers and potential education providers should ensure they understand the culture, context and system within which the individuals work in their home country before the international health and social care personnel arrives.
4.55 Other staff working in the host organisation should be made aware of the requirement to recruit internationally and of the support expected of them to encourage a culture in which diversity is valued and respected.
4.56 Induction should include aspects of cultural awareness, equal opportunities and diversity. Ongoing support should be culturally sensitive and offer career development and opportunities for progression.
4.57 Feedback should be sought from currently employed staff and internationally recruited individuals as the employment/placement progresses and any issues are identified and resolved in a timely manner.
4.58 Each international recruit must be made aware of how to find help and assistance in all aspects of their appointment. They should undergo a comprehensive programme of induction to ensure that they are clinically and personally prepared to work safely and effectively within the Scottish health and care system. The provision of a mentor can be helpful. NHS Employers International Recruitment toolkit provides advice and good practice guidance on the support required.
4.59 Induction programmes should encompass cultural and pastoral support to settle into working and living in Scotland It should include an initial welcoming of staff (and family), accommodation, pay, registering with a GP, dentist, schooling, setting up a bank account, information relating to professional organisations, union representation, national Embassies or High Commissions and introduction to social networks.
4.60 The potential financial position of health and social care personnel should be considered, and employers and contracting bodies should be aware that additional support may be required at varying levels depending on each individual situation.
4.61 Employers and contracting bodies should consult guidance on how to enhance their existing risk assessments particularly for at-risk and clinically extremely vulnerable groups within their workforce during COVID-19. The guidance is applicable, with appropriate local adaptations, in all healthcare settings.
Health and social care employers and contracting bodies should respond appropriately to applications from international health and care personnel who are making a direct application.
4.62 Individuals making enquiries from outside of the UK for a regulated role should be directed to the appropriate regulatory body in the first instance.
4.63 Individuals making a direct application to vacant posts including those residing in red or amber list countries should be dealt with equitably and fairly. Employers should be mindful of their responsibilities under the Equality Act 2010 not to discriminate or treat applicants differently due to their race (which includes nationality).
4.64 If a recruitment organisation, agency or collaboration are approached by an individual who is resident in a country on the list, they should signpost them to a relevant jobs board where they can seek out direct application opportunities independently.
4.65 Employers and contracting bodies should consider travel arrangements of short-listed candidates when setting the interviews. Interviews can be undertaken in person or via video conferencing if conducted with appropriate safeguards. Telephone interviews are not normally an appropriate method to select health or social care personnel for appointment.
Health and social care employers, recruitment organisations, agencies, collaborations and contracting bodies should record international recruitment activities. This will support Scotland and the UK to monitor and measure the impact of international recruitment flows on the health and social care sector in both the country of origin and Scotland and the UK.
4.66 It is important to have a national perspective on international recruitment supply and demand to inform policy development, workforce planning, recruitment processes and attrition rates. This also helps to identify best practice in maximising benefits to the UK, to the country of origin health and social care systems, and to health and social care personnel.
4.67 Health and care organisations should ensure they record information about their recruitment activity such as countries targeted, planned recruitment numbers, headcount, nationality country of application and professions of international recruits in employment.
4.68 Health and social care organisations are encouraged to respond to all surveys capturing international recruitment activity.
4.69 All organisations on the ethical recruiter list will be contacted by NHS Employers biannually to collect data on their recruitment activities to aid in monitoring of the code of practice. Information will be shared with the Cross- Whitehall International Recruitment Steering Group.
4.70 DHSC has a UK designated national authority to contribute to exchange on health worker migration on a global level, including regular progress reports to the World Health Organization, for ongoing monitoring, analysis and policy formulation.
4.71 Health and social care employers and contracting bodies are encouraged to share information on any known breaches of the Code of Practice to firstname.lastname@example.org.
4.72 A guiding principle of the Code of Practice is that there must be no active recruitment from countries on the list, unless there is an explicit government-to-government agreement with the UK to support managed recruitment activities on the terms of the agreement signed by the UK Government. This will support managed recruitment activities and ensure they are undertaken in compliance with the terms of that agreement.
4.73 In Annex A countries on the list are graded red. When a government-to-government agreement is put in place between the UK and a partner country which allows recruitment according to the terms of the agreement, the country's grading is changed to amber.
4.74 The red and amber country list does not prevent individual health and social care personnel resident in countries on the list making a direct application to health and social care employers for employment in the UK, of their own accord but without being targeted by a third party, such as a recruitment organisation, agency or recruitment collaboration.
4.75 More information on this is provided in the 'WHO Health Workforce Support and Safeguard List, 2020' section below. 'Active recruitment' and 'direct application' are defined above. The scenario examples below set out how the definitions of active recruitment and direct application are applied in practice.
4.76 The scenario examples are not an exhaustive list but illustrate the types of conduct which are a breach of the code (scenarios 1-9) and which are permitted under the code (scenarios 10-14)
Recruitment activity in breach of the Code of Practice
An agency advertises within Nepal – a red list country and actively supports a number of candidates resident in that country with their applications, appointments and travel to Scotland. This would be deemed active recruitment and contravenes the guiding principles within the Code of Practice.
An agency runs a recruitment fair in Niger highlighting opportunities in Scotland. Niger is a country on the red country list and should not be actively targeted for recruitment. The agency does not actually hire anyone. This would still be deemed active recruitment and contravenes the guiding principles within the Code of Practice.
An agency/organisation with multinational contracts advertises in Uganda – a red list country. They highlight that they are recruiting to a different country (i.e. not Scotland or the UK), however they also have contracts in Scotland. It later transpires that the agency facilitated a candidate's arrival to work in Scotland. This would still be deemed active recruitment and contravenes the guiding principles within the Code of Practice.
An employment agency is approached by an individual resident in Bangladesh - a red list country, who has been referred to the agency by their friend who is working as a social care nurse in the UK. The agency supports the individual with their application and makes a bonus payment to their friend for the referral. This is in breach of the code of practice. An agency should not facilitate the recruitment process unless the candidate has already been appointed by the employer through a direct application, at which point the employer may seek support from an agency with the remaining part of the recruitment process. In addition, referral fee schemes are deemed to be active recruitment and are not permitted in countries on the red list.
An NHS collaboration puts out a general advertisement for 15 nurse vacancies across various NHS Boards within the collaboration. They receive 456 applications across all the vacancies advertised and appoints several nurses resident in Nigeria to jobs in multiple NHS Boards within the collaboration. Nigeria is a red list country.
This is a recruitment collaboration and appointing nurses resident in a red list country would be deemed active recruitment and contravenes the guiding principles within the code of practice.
A social care provider is recruiting on behalf of a number of other social care providers. The vacancies are at a number of care homes in Scotland. The social care provider receives 30 applications for one of the roles at a care home in Scotland and appoints a candidate resident in Bangladesh – a red list country. This would be deemed as active recruitment and in breach of the code of practice as the social care provider is acting in the capacity of a recruitment organisation having recruited on behalf of another provider.
An agency is approached by a resident in Pakistan - a red list country - seeking work in the Scotland as a doctor. The agency supports their recruitment into a medical role at a UK independent healthcare provider. This would be deemed active recruitment and contravenes the guiding principles within the code of practice. In this situation the agency should sign post the candidate to a relevant jobs board so they can seek out direct application opportunities independently.
NHS Employers conducted a spot check on an agency on the ethical recruiters list following a random number generator. The agency, which was also on a framework, was found to have promoted on their social media sites that they hosted a recruitment fair in Pakistan – a red list country – for health care roles into a private hospital in the UK. NHS Employers investigates this through their informal process, and it is then escalated to a formal investigation as set out in Annex B. The formal investigation concludes that a breach of the code of practice occurred. A panel is convened to examine the evidence from both the agency and NHS Employers. The panel recommends that the agency be removed from the ethical recruiters list for at least one year before the agency can reapply, which is upheld. NHS Employers informs external stakeholders as well as the agency's relevant framework supplier of their removal from the ethical recruiters list, and as a result they are also removed from their framework.
A nurse resident in India is successful in obtaining a nursing job in a Scottish hospital. On receiving the formal contract, she queries the repayment clause included for £14,000 if she leaves the job within 5 years. No information has been provided on how the sum of £14,000 has been calculated or if it reduces over time. She asks the employer for a breakdown of what it includes. The employer gives a verbal breakdown over the phone of the costs including agency fee, sponsor application fee and relocation costs. The employer says if she does not sign the contract today, the job will be offered to someone else.
The employer is in breach of the code as they have not been transparent about the costs included in the clause. This should be provided in writing, with an itemised breakdown and should only include proportionate costs incurred by the employer on behalf of the recruit, not costs the employer is liable to pay as part of the recruitment process. The repayment clause should also taper down with time , for example over a 2-year period to take account of the level of service provided by the nurse during her employment. An employment contract must also not be signed under duress or because of undue influence or coercion.
Acceptable recruitment activity under the Code of Practice
A nurse resident in Sudan – a red list country – makes a direct application to a job advert in the NHS unassisted. He is interviewed by the trust and deemed successful for the post, subsequently travelling to the UK on receipt of his visa. This activity did not include any active recruitment therefore does not contravene the code of practice.
A doctor from Nepal, a red list country is resident in Canada having relocated there five years ago. An agency advertises in Canada and the doctor is recruited in the cohort and wishes to come to Scotland. This activity is not in breach of the Code of Practice; ethical recruitment is determined by the country from which the individual is resident in, rather than the nationality of the individual or their original country of origin.
Scenario 12 [OBSOLETE]
An NHS Board which is part of an NHS collaboration, puts out its own general advert for a mental health nurse vacancy independent of the collaboration. The advert is not targeted at any country. The NHS Board receives 250 applications and appoints a mental health nurse resident in Ghana - a red list country. In this scenario, the NHS Trust advertising the general vacancy is the same NHS Board requiring the vacancy to be filled. As the NHS Board is not working as part of a recruitment organisation or collaboration for the purpose of filling the role and the advert was a general advert not actively targeted at any country, this activity would not be deemed active recruitment and is not in contravention of the code of practice.
A social care provider puts out a general advert for a number of staff to fill various vacancies within its own nursing homes. The advert is not targeted at any country. The provider receives 60 applications and appoints 3 senior care workers resident in the Philippines – a green list country and 3 senior care workers resident in Nigeria – a red list country. In this scenario, the nurses resident in Nigeria made a direct application for the advertised post, meaning they applied independently and on their own behalf. The advert was a general advert not actively targeted at any country and was not managed through a recruitment organisation, agency or collaboration. Therefore, this activity would not be deemed active recruitment and is not in breach of the code of practice.
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