PMS contractors and the BMA model contract
The BMA model contract is a topic we recently covered in our blog: ‘What is the BMA model contract and does it apply to me?’.
Many PMS contractors assume the need to provide such a contract does not apply to them. However, the issue isn’t quite so clear cut and this may be leading some practices to inadvertently put themselves at risk.
In this post, we look at the issue in more detail to help clear up any confusion.
Which PMS contractors does the BMA Model contract apply to?
While all GMS contractors must offer the BMA model employment contract – or ‘terms no less favourable’ – PMS contractors are only obliged to if it has been stated in their contract.
In our experience, problems arise when a practice is unaware what is written in its contract. This can lead to salaried GPs being employed on non-BMA model contracts, despite there being a contractual obligation to do so.
Any PMS contractor who has signed the NHS England Standard PMS Agreement 2015/16 will have the obligation, and indeed the majority of PMS contracts we have seen over the last few years include it.
Sometimes practices can accrue the obligation unwittingly. For example, if a practice has signed a new contract following a PMS review they may not realise that the clause has been included and that they should move all their salaried GP staff onto new employment contracts.
What are the implications?
If salaried GP staff believe they are being underpaid, or have the incorrect contractual provisions, then they may seek to take action.
Whilst there is some debate about who can enforce the BMA model contract clause, there is the potential for NHS England to issue a contractual breach notice if they become aware that a PMS contractor is not offering the terms they should.
Most PMS contracts have a clause preventing third parties (such as employees or patients) from enforcing the terms of the PMS contract, however we are aware that some do not. In this case it may be possible for an aggrieved employee to enforce the clause directly, which could lead to a successful claim for historic loss of earnings.
With changes in partnerships, mergers and super-partnerships, where any such liability actually falls would be a complex legal issue to resolve.
Our recommendations
If you’re a PMS contractor and you are not sure what your current status is, then start by looking at the most recent version of your contract. Check whether or not it specifies that you have an obligation to offer the BMA model contract.
If it does and you are in breach, then we would recommend you seek advice from a specialist legal team, who will be able to guide you on your options and the best way forward.
For more information, 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
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