Hiring staff through Networks – what to consider

Joining a primary care network can raise potential employment pitfalls for GP partners and practices as employers. Meade King lawyer Linda Wylie answers some key questions to help you maintain a happy and loyal workforce.

One of the proposed benefits of the new primary care networks PCNs is the sharing of a wider workforce. The idea is that GP practices can pool their resources and work together with other healthcare professionals to provide more integrated services for patients and reduce pressure on overstretched GPs.  But employing a wider range of care staff can create a number of legal issues for general practices, even if you’re not the main employer.

Are we still legally liable if we’re not the lead employer?

The identity of the employer will depend on the structure adopted by the PNC.  Practices can choose to be joint employers or nominate a lead practice to be the employer, or create a new company to fulfil this role. 

The employer named in the contract of employment will, for the most part, be the party with responsibility for and control of staff, such as paying salaries and managing their work.  However, even if your practice is not the named employer, you still may have duties to, and be liable for, the acts of employees if you have sufficient control over their activities. For example, when an employer provides the services of an employee to another organisation (such as on a secondment), that second organisation may be vicariously liable for any wrongful conduct by the employee if it controls the way the employee carries out their work.

Who is responsible for managing staff who work across the network?

There should be a clear chain of command for each employee, but the employment contract should reserve the right to amend that hierarchy and to move staff to different locations and departments as and when needed. The job description and job title should be as general as possible to maximise flexibility. 

There should be good record keeping of performance indicators to avoid reliance on the memories of individual managers and staff who may only interact with the employee intermittently. Careful scheduling of shifts will be needed to ensure employees are getting adequate rest during and between shifts, and to avoid breaches of the working time regulations.

Are differences in staff pay and benefits across practices permitted?

Normally the employer named in the employment contract will be responsible for paying staff. If there is more than one named employer, the contract should specify who is responsible for paying the salary. Practices should be mindful that differences in staff remuneration may be exposed by previously disparate employees working together and comparing notes on their salaries.  Provided there has been no discrimination, differences in pay and benefits of employees are permitted but may be seen as unfair.

Who is responsible for disciplinary procedures?

Employers should have and the employment contract should reference a disciplinary procedure which is stated to be non-contractual; this to avoid an accidental breach of contract if the disciplinary procedure is not followed correctly. The procedure should identify, by job title, the people who will investigate any disciplinary matter, conduct any hearing and make a decision, and any appeal of the decision. Any investigation should be carried out by someone with sufficient knowledge of the employee’s work, but the decision makers should ideally be somewhat removed from the employee to ensure fairness.

Are there any TUPE considerations?

TUPE regulations are designed to protect the rights of staff who are transferred to work for a new employer, or are dismissed as a result of the transfer. If the identity of the employer changes with the transfer of any staff member to the Network workforce, then TUPE may apply to the transferring staff although not to any self-employed workers such as locums. If the regulations do apply, the transferring employer must inform – and often also consult with – its staff before the transfer takes place. The transferring employees’ terms and conditions of employment must be preserved. 

How can we ensure that this all works in practice?

A great deal of planning will be needed before any changes are made. Employment contracts should be reviewed beforehand to ensure they allow changes to job duties, hours and place of work; without this flexibility, such changes may be a variation of contract that an employee is entitled to resist.

Linda Wylie is a solicitor in Meade King’s employment and dispute resolution team who advises healthcare professionals on employment law and litigation.