Keep a close eye on your ‘shares’
There are some big challenges to overcome if you share staff across Primary Care Networks (PCNs).
The purpose of primary care networks is to bring practices together to work in an integrated way to deliver Directed Enhanced Services (DES). The payments for DES include staffing costs for employees who will work across the network to fulfil the contract.
The Mandatory Network Agreement published by NHS England and the British Medical Association refers to sharing of staff but does not include any detail of how that will be achieved. It states in clause 27: ‘We will each have individual responsibility for our own staff.’ There is then reference to schedule 5, in which each network can set out its own arrangements, which is left blank for networks to draft for themselves. Getting the content of this section right is essential and could avoid a great deal of trouble and expense later.
Identity of Employer
Anyone who has run a practice will know that there are plenty of traps for the unwary in employment law. These are accentuated when sharing staff with others. The first question you will need to address is which organisation will employ the newly-recruited network staff. Will the employer be one of the practices, all the practices jointly, a company or partnership formed for the network, a GP federation, an NHS Trust or something else? One certainty is that the network can’t itself directly employ staff because it is not a legal entity. The employing organisation doesn’t necessarily have to be the employee’s paymaster; for example, payroll might be delegated to the network’s nominated payee which receives the DES funding.
Some of the models listed above might involve the network staff being seconded out to other practices. The supply of staff to a network through a secondment agreement is likely to be a VATable supply, whether or not the staff are clinical. Secondment models may also give rise to additional obligations under the Agency Regulations 2010.
If the employer isn’t a practice, consideration needs to be given to whether the employer is an “employing authority” under the NHS pension scheme such that its staff can access an NHS pension and to securing adequate professional negligence insurance arrangements for the employees.
Employment Terms and Policies
When you have decided who will employ network staff, it will need to be determined what their terms and conditions should be and what policies should apply to them. The two most obvious options are to employ them on the employment terms normally used by the employing organisation, or to employ them on a contract and suite of policies created specifically for network staff, and which could then be used by other employers of network employees in future. We usually recommend the second option, although it requires more advanced planning and possible up-front cost.
Funding for network staff under the DES contract is based on NHS Agenda for Change pay scales, but that doesn’t mean their contract needs to refer to NHS pay. You should consider making an express connection in the employment contract between the employment (particularly any pay reviews) and the DES funding. This could make it easier to justify a future dismissal based on redundancy should funding diminish or be withdrawn.
A common source of unrest in organisations where staff work closely together but have different employers is perceived unfairness in terms and conditions. Within a single network, staff may be expected to work alongside colleagues doing very similar jobs but employed on different terms and conditions and under different policies. Inconsistencies in working hours, rest breaks and holidays are all common causes of discord and a source of risk. This is just one reason why practices are well advised to promote good employee relations by consulting with all staff (not just newly appointed network staff) about employment arrangements.
Having agreed who will employ network staff and on what terms, the next issue to consider is who will make the big decisions relating to employing network staff, such as who to recruit and when to dismiss them? Practices may initially express a desire to have a say in these decisions, but when it comes to it, may not have the inclination or capacity to engage properly with the processes involved. To limit the risk of employment issues arising you will need to document who will deal with management and HR issues. Your network governance arrangements should cover how decisions are reached and the procedures that will be adopted to do so.
The HR procedures that will need to be covered in the agreement include:
- Performance reviews
- Disciplinary procedures
- Leave arrangements, including annual leave and family-friendly leave
- Varying terms of employment (including whether this requires the consent of other members)
- Dealing with redundancies and meeting any payments
- Responding to claims
- Data sharing
In respect of the final point on the list above, don’t forget that aside from data sharing issues relating to patients, as soon as organisations share staff, they will need to begin sharing data about those staff. There will need to be contractual provision between the organisations governing this, and employing organisations will need to create (or update) staff privacy notices to reflect the arrangements.
As well as allocating practical responsibilities, an important aspect of the network agreement will be to formalise how legal liabilities will be shared between network members. A common source of dispute between partner organisations who share staff is where the liable party isn’t the one obviously at fault, or where one of the parties is more at fault than another. Through a series of indemnities in the schedule to the network agreement, it will apportion:
- inevitable and foreseeable costs such as staff salaries;
- unexpected but potentially unavoidable liabilities such as redundancy payments; and
- potentially avoidable liabilities, such as for awards for successful legal challenges, legal costs, and associated management costs of defending such claims.
Those indemnities will require careful drafting. Thought should be given at an early stage to whether practices will share all such liabilities equally, whether apportionment will be weighted (for example based on list size) or whether the agreement should take account of the circumstances surrounding the liability (such as who was at fault). The agreement should contain provisions for dispute resolution which can be invoked if there is a disagreement as to liability to avoid having to make a claim in court. The example below highlights the scope for complex employment challenges and the importance of properly drafted indemnities.
The practical and legal challenges of sharing staff aren’t straightforward, but they are surmountable; networks will require specialist bespoke advice and will need to devote time to working through the options. A well-drafted network agreement will be key to establishing relationships and liabilities from the outset and avoiding disputes later.
Network employee Joe is employed by practice A. He accuses his colleague (employed by practice B) of harassment. His grievance is heard by a manager employed by practice C, who decides it is unfounded. Joe brings a discrimination claim in the employment tribunal against his employer, practice A. Practice A might have had minimal involvement in the case, but will nevertheless retain legal liability for claims.
An award made by an employment tribunal will almost always be solely against the employer. The indemnity agreement should provide for the apportionment of that liability after it is made, refunding practice A. The agreement should also apportion liability for legal costs in defending the case and for potentially settling the case. Lawyers instructed to defend the claim will act for practice A, but practices B and C will have a vested interest in the outcome of the case and the way in which it is run (for example whether it should be settled and for how much). However, unless provided for in the network agreement, they won’t necessarily have a say.
The stakes in some types of employment claim are high: in discrimination cases, aside from awards for injury to feelings, tribunals will award compensation for whatever it deems the claimant would have earned, had it not been for the discrimination. In extreme cases this can extend to career-long losses.
This article first appeared in the Autumn 2019 issue of AISMA Doctor Newsline, the newsletter of the Association of Independent Specialist Medical Accountants.