The 2023 pay round has highlighted some campaigning, organising and bargaining opportunities around bank contracts. This guidance is aimed at UNISON branches and organisers to help them have informed conversations with members who work on an NHS-operated bank as their primary contract (rather than those employed via NHS Professionals or a private agency). It covers ideas to improve these terms and how to build a 5-step plan to win.
Some NHS employers make substantive staff work on a bank contract when doing overtime or additional hours. Further advice to challenge this practice will be developed in line with UNISON’s 2023 Health Conference policy.
What is a bank contract?
A bank contract is essentially a zero-hour contract which allows a worker to undertake periods of work with an NHS employer. The contracts are designed so that the worker is under no obligation to take work and the employer is under no obligation to provide work. Only during a period of agreed work does the employer offer an employment relationship. Once the period of work finishes the person is considered no longer a worker by the employer.
There is no national bank contract and therefore the contract is a local set of terms offered by each NHS employer to its workers.
How does pay work under a bank contract?
People are paid for the hours they work, which is normally based on a fixed point in the equivalent NHS Terms and Conditions pay band, plus relevant unsocial hours payments. Bank workers are entitled to holiday pay which is normally rolled up into the hourly rate (around 12.07% to make it consistent with statutory leave). Bank workers are not provided with annual leave but expected to comply with the Working Time Directive to ensure they take minimum holidays and rest periods.
What are the benefits and risks of a bank contract?
The main benefit is flexibility for both parties. The employer can choose how many bank shifts to offer out and is under no obligation to provide work. The bank worker can choose their shifts according to their needs, providing there are enough shifts. Bank workers might also be able to work for multiple employers under different bank contracts giving them flexibility and variation in their work.
The main risks are that there may not be enough work, or work in a pattern that suits the worker’s caring or family responsibilities or their lifestyle choices. The worker is also vulnerable to sickness absence because there is no contractual right to paid sick pay.
If employers do not monitor working hours, there is also a risk that bank workers might work excessive hours across various contracts leading to burn out and long-term health problems.
Finally, many bank contracts that UNISON has seen include an immediate termination clause in the event of a complaint or issues being raised and there is also no automatic right to raise a grievance. Branches may want to discuss the barriers that this presents to bank workers feeling able to raise their concerns or speak up through the Freedom to Speak Up Guardians.
Why do people choose to work under a bank contract?
Reasons vary but it is likely that bank workers either want the flexibility that they can’t get through a substantive contract or because they can’t get a substantive contract. Students in training often also have a bank contract to gain experience and pay whist trying to balance their studies.
What are the equalities issues?
It’s important to know who works on the bank and how to strengthen arguments for staff with protected characteristics. For example, it may be that the bank has more female workers due to the need to balance caring responsibilities and the inflexibility of substantive contracts.
The 2022 bank-only staff survey highlighted race factors for bank workers.
“Bank only workers are disproportionately likely to have ethnic minority backgrounds, with more than one in three bank workers being in ethnic minority groups according to data included in NHS supplementary information files, equality and diversity measures (2019). NHS workforce race equality standard (WRES) data shows that currently 24.2% of all NHS staff are from ethic minority backgrounds”.
According to this survey report, around 190 NHS trusts in England operate in-house banks and 140 of those chose to include their bank workers as part of the 2022 NHS Staff Survey.
If your trust took part in the bank only survey, you could ask your employer to share this information.
All bank workers will be included in the 2023 NHS Staff Survey so branches should discuss the additional scrutiny and accountability for how employers treat bank workers that will come from this.
Although related to outsourcing, the Equality and Human Right Commission (EHRC) found that insecure work and poorer pay and terms and conditions disproportionately affect lower-paid ethnic minority workers:
“The commissioning-out of adult social care, and outsourcing of some roles in health, has resulted in more insecure work and poorer pay and terms and conditions than for those directly working for the public sector, disproportionately affecting lower-paid ethnic minority workers who are more likely to be working in these indirectly employed roles in adult social care.”
The report reminds employers of their duty to take ownership and accountability for the Public Sector Equality Duty (PSED) by undertaking and publishing evidence-based Equality Impact Assessments.
Can we improve on basic bank terms?
Yes, we believe you can. If you have a partnership agreement in place that allows for collective bargaining, then you may already be able to bargain and negotiate to improve the bank contract. Your employer may not see it this way or have a clause excluding negotiation around bank contracts. In either case, using the 5-point plan below to build a base and find out the issues that matter to bank workers should help you get the employer around the table.
Here are some improvement ideas to get you started.
Make pay and benefits equal – the most straightforward way to achieve this is to make sure there is a dynamic link between the bank contract and the NHS terms and conditions. The clause should say that the employer will mirror any national pay awards and agreements.
Bridge the flexibility gap – if people are working on the bank because they cannot get a flexible contract, but want one, then use the new ‘day one’ right for NHS staff working in England and Wales to request a flexible working contract. https://www.unison.org.uk/at-work/health-care/big-issues/flexible-working-for-nhs-staff/
Improve the terms of the bank contract – branches can argue that if bank workers are working a certain number of hours every month, they should benefit from pay progression. Most bank contracts use the bottom point in the pay band, but why not improve that to include mid-point and even top point for the most reliable and regular bank workers?
Other ideas to consider include improving holiday pay for regular bank workers; getting bank workers better allowances, like mileage payments and even short notice shift change allowances; and getting paid for mandatory training.
Help bank workers get the benefits of natural justice – building in the right to a disciplinary and grievance process will help workers feel more confident about raising a concern or facing a complaint. These could be shortened processes but the right to put their side across and be accompanied are principles that are hard to argue with.
Keep bank workers safe – bank workers are entitled to the same health and safety protection as substantive staff. This should include the recording and monitoring of safe levels of working hours across substantive and bank contracts and access the organisation’s occupational health services.
Do employers value their bank workers?
Employers need to put their money where their mouths are. We hear from bank workers about being treated differently from substantive staff by their employer. This includes employers not paying the 2022/2023 lump sum payment to bank workers.
UNISON believes that employers should reward flexibility and demonstrate their value to bank workers through improving bank terms to make them no less favourable.
What can branches do?
To win this kind of change, we need a credible plan to win. This plan is not just for you in the branch to know what your next steps are, but also to convince bank workers that it’s worth their time to get involved, because there’s a clear and achievable route to success.
Where should branches start?
Build a five-phase plan.
Research – do your research: know the current bank contract; know what better alternatives exist and what you might be aiming for; try to find out how many bank worker members you have, and what job roles and departments have a lot of them.
Base building – start building a base of bank workers. The first step is outreach – site walkarounds are best, but stalls can be productive too. Ask open questions to let bank workers open up about the problems they face at work.Try to find natural leaders from amongst the bank workforce. You can do this by asking if there are any especially experienced and respected bank workers they know. Bank colleagues who are good at their jobs and respected by colleagues will have huge potential to bring more bank workers onboard with them, so see if you can be put in contact with these key ‘natural leaders’.
You may want to create a short simple survey for bank workers, to collect data on what issues affect them as well as their contact details. In every conversation, it’s essential to centre their agency so that they feel it’s worth getting involved to make a difference. You can do this by making clear that this can only work if they step up alongside their colleagues.
In some workplaces, the staff responsible for coordinating bank workers across the site or trust may be brought onside as allies to the campaign through a relationship-building in person conversation. They have the potential to be enormously helpful in spreading the word.
Campaign launch – bring bank workers together so that they can see that they’re not alone, but others like them want to stand together with strength in numbers to make change happen.Organise a meeting (or meetings) for bank workers on site with the aim of launching a specific campaign during the meeting with a clear winnable demand around their contracts and treatment.
You should have a clear sense of what the first step(s) of this campaign will be – such as a petition, joint letter or collective grievance – so that bank workers can leave the meeting with a clear task to do towards building the campaign, and a real sense of responsibility for their own future. This also provides the opportunity to get non-members to commit to joining the union.
To get a good turnout at the meeting, call up bank workers using the contact details you have gathered to encourage them to attend, and increase your walkarounds and stalls in the run-up.
Escalate – get ready to leverage this people power against the employer in order to pressure them to concede to your fair and reasonable demands. This means taking collective action. Discuss with bank leaders what this might look like, such as bringing a large delegation of bank workers to present their petition in an upcoming Board of Directors meeting, in a respectful and dignified manner.Ensure that you always have a plan for a follow-up tactic, such as a supportive petition from staff with substantive roles, to ensure that the employer’s individual decision makers (e.g., the CEO) know that the longer they don’t concede to your demands, the more and more pressure will keep building up on them. This is what incentivises them to come to the bargaining table and concede.
Win, celebrate, review and sustain – once you have secured the win, it’s not yet time to stop. It’s key to celebrate the win the union has secured. Do this by continuing with site walkarounds and stalls to spread the word and encourage bank members to join the union.This is also the time to encourage your best activists and leaders in the campaign to become reps. Continue providing support to them to ensure they get onto a training course and have mentoring support once trained so that their activism gets solidified into the long term.
Finally, take the time to review the campaign. What worked well? What didn’t work so well? This will help to improve organising in the next branch campaign.