With a national staff shortage of nurses in the NHS and private sector, UK employers are relying heavily on the international workforce to bridge the gap through recruitment. Tens of thousands of international nurses arrive in the UK each year, but at what cost for GP Practices?

What is a Repayment Clause?

It can cost an employer up to £12,000 to recruit a nurse from overseas and, due to the high cost of recruitment, many are subject to a repayment clause within their employment contracts. Clauses within a contract set out the conditions under which the employment contract is legally enforceable, thus establishing the terms of the contract. Repayment clauses are usually included in employment contracts for international workers, and employers tend to include them to retain staff and recoup expensive recruitment costs.

Often, a repayment clause covers hiring expenses such as travel to the UK, payment for visas and the fee for taking English language exams. In some cases, the costs cover mandatory training, for which workers hired in the UK are not usually required to pay; a repayment clause included within the employment contract can carry a huge burden on those who sign it.

Contract Implications

An investigation conducted by the Observer in March of this year revealed international nurses employed by NHS trusts and private care homes are subject to a repayment clause in their employment contracts, sometimes requiring them to pay thousands of pounds if they try to leave their employer, essentially trapping them within their role.

The investigation found that some nurses must commit to the role for up to 5 years with repayment fees of up to £14,000 if they want to leave and return to their home countries, even in cases of an employee leaving due to bullying and discrimination. This repayment clause is currently being used in both the NHS and private sector employment contracts.

Several nurses, who have served on the frontline during the pandemic, are affected by the repayment clause, which has forced them into debt and locked others into long-term repayment agreements after they leave their roles.

Fair Recruitment Practices

The Royal College of Nursing has stated that they are ‘’very concerned’’ about the practice. Unison, the largest trade union in the UK, views the repayment clauses as nurses being trapped in unethical contracts, and MPs have called on employers to discontinue the practice of adding repayment clauses into the employment contract.

The findings of the investigation have resulted in the UK Government updating the Overseas Recruitment Code of Practice with four key principles for the inclusion of repayment clauses in employment contracts, which employers are required to apply and respect moving forward. The four principles are:

• Transparency
• Timing
• Flexibility
• Proportionate Costs

The transparency principle requires employers to set out clearly the repayment clause within the contract and/or job offer, whereas the timing principle requires the repayment schedule to diminish downwards over time.

The flexibility principle requires employers to be flexible about when they impose the repayment clause and to consider waiving the repayment in certain circumstances, such as when the health of the worker is impacted or if the worker leaves due to bullying or discrimination.

The proportionate cost principle sets out what fees can be charged, for example, agency fees, via fees, immigration skills change and relocation expenses.

An Employers’ Duty of Care

The UK government has pledged to add 50,000 nurses to the NHS by 2025 to assist in bridging the national staffing shortage. The number of international nurses entering the UK to work continues to increase, employers now have a duty to apply the 4 key principles published in the government guidance and it is advisable that repayment clauses are removed from employment contracts moving forward.

When a worker is leaving their role due to bullying or claims of discrimination employers should consider not triggering repayment clauses. Clauses that discipline workers for leaving their roles have previously been found to be unethical and unlawful. A 2019 employment tribunal ruled that a nurse from India had been subject to an "unenforceable penalty clause" when £2,000 was deducted from her wages for ‘’training costs’’ when she left after her two-year contract came to an end.

Employers should make themselves aware of the potential risks of employment tribunals resulting from unethical and unlawful repayment clauses within employment contracts.

To view the governments Code of Practice for the International Recruitment of Health and Social Care Personnel please click here.