Why is a partnership offer letter so important?
Taking on a new partner is a significant step for any GP practice, and it is important to get it right from the outset.
Once a new Partner has been selected, a partnership offer letter should be next on the agenda.
Why do you need one?
The letter will act as written confirmation of the key terms of the appointment. By properly documenting and setting out the terms in this way, the offer letter can provide some protection for the Partnership until the Partnership Deed is updated, and reduces the risk of dispute over the offered terms.
What about the partnership deed?
The admission of a partner is something that needs to be dealt with within a partnership deed as soon as possible once your offer has been accepted.
Practices often find difficulty in updating the Partnership Deed before the start date, which makes the offer letter even more vital, as it will act as a holding agreement until the Deed is resigned.
There is a misconception that a partnership deed shouldn’t be updated until after an incoming Partner has completed their probation period. This approach is not advisable for a number of reasons and ultimately you can end up as a partnership at will which can put your contract at risk.
What should the offer letter cover?
The offer letter needs to be consistent with the existing arrangements that are set out in the existing partnership deed. The key things it should include, are:
- Commencement date
- Offer of partnership – clearly stating that the position is self-employed
- Notifications – confirming that notifications will be given to NHS England & CQC once the offer if accepted
- Sessions – outlining in detail the sessions that are expected to be covered
- Partnership share – explaining how earnings will be worked out
- Working capital – detailing any working capital contribution that is expected
- Surgery premises – attaching a copy of the surgery lease and outlining there will be shared liability for the lease terms, including the rent. If there is to be a commitment to buy into the surgery premises, this should also be stated
- Mutual assessment period – detailing any probation period and what it will entail, including notice periods Annual Leave entitlement
- Administrative requirements – stating that proof of identity and qualifications, eligibility to work in the UK and an up to date CRB check will all be needed prior to the partnership commencing
- Acceptance – the time frame within which the offer must be accepted
- Partnership Deed – a copy of the Partnership Deed, the terms of which they must consent
Our recommendations
Make sure your offer letter is clear and sets out all the key points; it should be signed by one or more of the current Partners and have place for the new recruit to sign by way of acceptance of the terms.
You then need to get the partnership deed updated as quickly as possible, and preferably ahead of the new partner starting.
As with any contracts and partnership issues, it is always advisable to seek the support of an experienced legal team, who can ensure you put yourself in the strongest possible position.
For more information about employment contracts and any other related issues, please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com
News
What is the BMA model contract and does it apply to me?
The BMA model contract was introduced in 2004 to try and ensure a common standard for GPs employed by practices and those employed by PCOs. The PCOs have since become CCGs and NHS England, and they no longer employ significant numbers of GPs. Nonetheless, the BMA Model Contract has endured. All practices which it applies to must offer their salaried GPs the BMA model employment contract, or ‘terms no less favourable’.
Over the last 10 years the profile of the profession has changed drastically. There are now many more salaried GPs than ever before and most of them should probably be on BMA model contracts or similar.
Who does it apply to?
It is an express term of all GMS Contracts that the GMS Practice must offer their salaried GPs BMA model contracts or terms no less favourable.
The definition of a salaried GP includes:
- Salaried GP who undertakes special interest work (a GPwSI)
- Assistant
- Associate
- GP retainee
- Flexible Career Scheme GP
- Returner scheme GP
- Salaried GP employed to work out-of-hours.
PMS and APMS practices
The position for PMS and APMS practices is more complex. The NHS England Standard PMS Agreement 2015/16 contains the same requirement as GMS, but most PMS practices hold different, older contracts.
The original intention was that PMS would be locally negotiated. Some local commissioners included a clause requiring BMA Model Contracts in their PMS contracts, whilst others did not.
The only way to be sure is to read your PMS or APMS Contract – something very few practices ever do.
Is it a standard template?
The BMA model contract is a downloadable template document, but it doesn’t have to be used in its exact form. The phrase ‘no less favourable’ means it can be varied and negotiated. The employee and employer might agree to change some of the terms, perhaps trading some leave for pay and so on. In the end it is up to the parties to decide whether they regard a change to the model as a favourable one or not.
We generally advise practices to carefully consider the wording of the contract rather than simply adopting it wholesale. There are some important employer protections which are found in most other employment contracts and which are not in the BMA Model. Also, you will probably want to ensure that your salaried GPs are not on radically different terms to your other clinical and possibly also non clinical employees.
What if you get it wrong?
If the requirement is in your GMS/PMS/APMS contract and you employ salaried GPs on terms which are less favourable than the BMA model contract, then you are in contractual breach. If NHS England become aware of this, they will almost certainly issue the practice with a ‘Remediation Notice’. This will require you to rectify the situation within a given timescale and sanctions could also be imposed. If 2 or more breach or remediation notices are issued NHS England would be entitled to consider termination of the contract.
Recommendations
If you are a GMS Contract and are not offering the BMA Model Contract or terms no less favourable, you should consider taking steps to rectify the situation.
If you are a PMS or APMS practice then your first step should be to check your NHS E contract to see if the BMA model applies.
Aim to have an open discussion with the person you’re looking to employ, to negotiate the terms that will be most favourable for both parties. You need to find a positive balance between the best interests of the practice and the individual. Just remember that overall, the terms and conditions must be deemed ‘no less favourable’ than those set out in the BMA model contract.
In general this is a surprisingly tricky area of law, and something which both employer and employee can get very exercised about. If you’re at all unsure about your situation, then always seek the advice of an experienced legal team who will be able to assist you.
For more information about employment contracts, any other related issues, please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com