The Updated GP Contract states that there are now three measures in position to reduce the risks associated with employment liabilities. This has generally been well accepted and people have moved onto looking at other questions.
Unfortunately, a careful look at these measures reveals very little actual change between the new and the original position. The three measures represent an option that already existed (measure 1), a partial statement of the law as it has always been (measure 3), and a vague assurance about the future of funding which does not directly give assurances about employment (measure 2).
It is important not to create and continue periods of negativity, and as someone who is generally supportive of the principles underpinning the PCN project it is difficult to appear too critical. However, this has to be balanced by a true understanding of the risks.
If the wrong decisions are taken now, or if over reliance is placed on vague assurances, practices may find their original fears come true. This in turn creates a further disconnect in the relationship of trust between the practices and the commissioners.
From a practical perspective, I was speaking with a GP partner earlier in the week who had committed to taking on the employment responsibility of all the new staff due to the assurances of the measures. I corrected his view, and this has resulted in a redesign of appropriately shared liabilities across the PCN members.
I have written a longer piece relating to the measures as they have currently been outlined for specific concerns and recommendations. The following is a quick summary of the measures within the updated GP contract:
- Measure 1 – Using third party contractors
These can be structured in different ways and the extent to which these are provided will vary the degree of protection. They need to be financially viable and should offer the service that you are after. VAT remains a risk if it is not structured correctly. Good contracts are essential in forming these documents.
- Measure 2 – Funding secured within the core contract
This is a good change, but ensure your plans have sufficient security for the employing practices should the money be split between other practices. You may find that you employ an individual but the money is with multiple other practices with no mechanism to claim it. A cross-indemnity arrangement may resolve this risk.
- Measure 3 – Reliance on the future application of TUPE
TUPE has complex rules relating to when it does and does not apply. Most importantly it does not apply where services cannot be clearly defined and employees directly linked with those services. How each specification requirement is structured, and how each additional role is utilised across the PCN, will significantly alter the risk. In many cases it is hard to see how this protection will apply where the team members are integrated into core general practice delivery.
In practice it is important to note that these are the same risks faced by the providers of all time-limited contracts. APMS and AQP providers have had the same issues and it could be argued they have damaged the ability of many of these providers to retain staff and have partially resulted in the higher rates than GMS contracts.
The only definitive solution is a legally binding indemnity from the commissioners relating to redundancies directly resulting from a change of policy. This remains unlikely, and even if it could happen it is some time away.
Practices and PCNs should therefore ensure that this is a defined risk with a suitable management plan based on categorisation of staff. Certain steps can reduce the risk, including the following:
- Ensure that contracts with third parties are viable in the long-term and that all liabilities are covered;
- Develop an indemnity between the practices to ensure the funds are appropriately managed, to reduce the risk of funds being split between multiple practices and creating a shortfall for the actual named employer;
- Where possible, directly link staffing to service delivery. This may reduce flexibility but it improves the chance that TUPE will apply.
Finally, if in doubt seek support when making plans and ensure that you fully understand the risks!
Robert McCartney, Managing Director, McCartney Healthcare Associates Ltd. You can contact Robert by email rm@mccartneyhealth.co.uk.
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