What pregnancy and maternity rights does a partner have?
A partner is a business owner and employer, which by definition means they are not an employee. As a consequence, partners do not benefit from all the various employment protections afforded to employees. Despite this, we are often asked about partner entitlements, particularly regarding maternity and childcare.
What is the legal position?
Partners do not benefit from statutory maternity and childcare entitlements, although they are protected from being discriminated against by reason of their pregnancy and maternity, gender and marital status under the Equality Act 2012.
Broadly speaking, the Equality Act provides that women should not be subject to “less favourable treatment”, or subject to unreasonable requirements that they cannot meet because of their pregnancy/maternity or childcare commitments.
The majority of the maternity rights for a partner will be set out in their partnership agreement. These will be binding unless they are found to be discriminatory. In the absence of a partnership agreement, there are very few automatic rights that will accrue.
Common Issues
Particular issues where liability under the Equality Act could accrue include:
- Not engaging or promoting someone to Partner because of concerns that they will be absent due to maternity leave, or won’t be able to “pull their weight” because of childcare commitments;
- Not allowing for any maternity leave at all or a very short period only;
- Not allowing a female Partner who has a pregnancy related illness the same sickness absence entitlements as other sick Partners;
- Reducing profit share during maternity leave;
- Not accruing holiday leave during maternity leave;
- Not allowing a partner to work part time or change session times to deal with childcare commitments.
None of the above are entirely clear-cut and would need to be looked at on a case-by-case basis. For example, the Equality Act certainly indicates that holiday leave should accrue in the normal way during some of a partner’s maternity leave, but it is less clear whether this would accrue during the entire period of their absence.
Practices should be aware that they can claim under the SFE for payments to cover locum expenses during maternity, paternity and adoption leave. The common practice is that the absent partner continues to receive profit share whilst the SFE payments are being received. However, if you wish to do this, you will have to ensure that this is set out in your partnership agreement.
Conclusion
This is an area of law that is both complex and uncertain. There is only a limited amount of case law applying specifically to Partners, so each case is likely to be determined on its own merits.
Practices should be very wary of opening themselves to the risk of a discrimination claim, as these have unlimited liability. The best protection is to:
- Ensure that the practice has a clear non-discrimination policy in place which includes discrimination on the grounds of maternity and childcare commitments.
- Make clear that this policy applies to all staff, including partners.
- Ensure that the Partnership Deed is professionally prepared, that it is clear on the subject of maternity and other forms of leave, and that it is kept reasonably current as the law changes. Anything drafted more than 3 years ago may well be out of date with current best practice.
If you have any questions about this or any other matter, please contact Daphne Robertson on 01483 51155 or d.robertson@drsolicitors.com
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What does GDPR mean for GP Practices?
What is GDPR and what does it mean to be compliant?
I am sure that you will all by now be aware of GDPR. GDPR comes into effect on 25th May 2018 and seeks to give individuals more control over how organisations use their data.
GDPR is a European regulation, and automatically becomes law in the UK because of our membership of the European Union. Although Brexit would take us out of the European Union, the current plan is to incorporate all EU law into UK law, so GDPR is almost certainly here to stay.
Confusingly, the UK Parliament is drafting its own data protection law called the Data Protection Act 2018 (DPA 2018). This law will supplement the GDPR and replace the existing 1998 Data Protection Act. The DPA 2018 is still working its way through Parliament so is not finalised. Much of the commentary on ‘GDPR’ combines it with the DPA 2018, and so mixes actual law with a draft bill.
Who does it apply to?
GDPR applies to all individuals and businesses who have responsibility for handling personal data. GP practices are ‘data controllers’ registered with the Information Commissioner (ICO) and are responsible for deciding how and why data is processed.
In our experience, practices have long been familiar with the concepts of data confidentiality, but GDPR requires additional levels of process and control, and forces practices to think about all personal data, not just the confidential health data they hold.
The key to understanding compliance with GDPR is not to see it as a tick-box exercise to be completed by 25th May, but rather as developing and embedding a permanent change of culture, whereby protection of personal data is central to every decision made within the practice. When all staff are able to recognise personal data and make informed decisions about protecting and processing it, and know what to do in the event of a breach, you will be well on the way to compliance.
What can GP practices do to prepare for GDPR?
- If you haven’t found it already there is a very helpful 12 Steps to Take Now and Data Controller Self Assessment Toolkit on the ICO Website. Given that the ICO is the data regulator, they are the best place to start with your preparation.
- It is critical that practices can demonstrate that they have sought to comply. The ICO has been clear that they are looking to see reasonable efforts being made. To do this you will need to have identified, documented and explained the legal basis for all the data flows to and from the practice. This is likely to be a time consuming undertaking and will be difficult to do unless you have a member of staff who is familiar with documenting processes and data flows. Remember that this documentation will have to be kept up-to date, so be careful not to outsource all your understanding of this information audit.
- Data Protection policies and procedures must also be updated. Many practices have historically relied on ‘template’ policies, but these are unlikely to be adequate, as procedures will have to relate to the data flows identified in the information audit.
- Privacy Notices are another important part of GDPR. These must be displayed prominently, which as a minimum is likely to be on the practice website and the noticeboard. Practices should think hard about opportunities to draw patient attention to these Privacy Notices, since one of the key principles underlying GDPR is transparency about how you deal with data. New information which must be added to privacy notices includes how you intend to use data, and the ‘lawful basis’ for what you are doing.
- Be aware that much health data falls under one of the GDPR special categories. In addition to the ‘lawful basis’ that all data controllers must identify, practices need to satisfy a second separate condition that the processing is necessary for the purposes of healthcare.
- Staff training is also an important part of compliance. Practices will need to be able to demonstrate that they have trained all their staff, including Partners, in GDPR and have an ongoing program to ensure that they are kept up to date as the law changes.
- One significant change is that practices can no longer charge patients for access to their medical records except in exceptional circumstances. This may unfortunately increase the administrative workload as patients and others get used to making ‘subject access requests’. The time limit for dealing with these has been reduced from 40 days to one month.
- An interesting example of the current uncertainty is the role of the Data Protection Officer (DPO). Under GDPR, it is not at all clear that practices are required to appoint a DPO. However, the DPA 2018 if enacted in its current draft form would certainly require practices to appoint a DPO.
So what happens if there is a breach and what are the risks of non-compliance?
In the event of a data breach affecting patient’s privacy rights, you must notify the Information Commissioner’s Office (ICO) no later than 72 hours after you become aware of the breach. If the breach is likely to present a high risk to their data, the patient must also be informed. You should have a clearly documented process for managing a data breach. This is another example of how proper documenting of processes and staff training is going to be vital.
Conclusion
It is important that practices take ownership of GDPR themselves. Compliance is not really something that can be outsourced, although there are plenty of commentators looking to profit from it. The ICO have made clear that the world will not end on the 25 May 2018 as they realise this is a journey for all businesses and they want to be supportive rather than punitive, but they will want to see evidence that practices are taking data security seriously throughout the organisation.
If you are concerned about your GDPR readiness, then please give us a call and we would be happy to talk through your plans. In our experience, most local medical committees are also aware of what needs to be done and are able to assist members and share good practices on GDPR.
If you would like to discuss GDPR or any other legal matter, please contact Nils Christiansen on 01483 511555, n.christiansen@drsolicitors.com
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Stamp Duty Land Tax on Surgery Leases
Stamp Duty Land Tax (SDLT) was introduced in December 2003. It is a tax payable on a variety of property transactions, including purchases and transfers of freehold and leasehold land and property.
GP Practices sometimes believe they are exempt from SDLT because of the ‘partnership exemption’. Whilst this may be the case for some transactions, the truth is unfortunately much more complicated.
What types of transaction are liable for SDLT?
SDLT is payable on UK land transactions that have a chargeable consideration – for example, on the purchase price of a property, or when a lease is granted.
For the purposes of SDLT, a chargeable consideration is defined by HMRC as “anything given for the transaction that is money or money’s worth”. When the value of a transaction rises above a certain threshold, the purchaser is liable to pay the tax.
The calculation of SDLT on the grant of a new commercial lease depends on the length of the lease, the premium paid (if any) and the rent payable under the lease. A helpful SDLT calculator can be found on the HMRC website: www.gov.uk/stamp-duty-land-tax/nonresidential-and-mixed-use-rates
Who is responsible for paying SDLT?
It is the responsibility of the purchaser or tenant (upon the granting of a lease) to calculate the amount of tax and complete and submit a Land Transaction Return (SDLT1) to HMRC within 30 days of the effective date of completion of a transaction.
A solicitor can help complete this on behalf of the purchaser or tenant, but legally the purchaser is responsible for the accuracy and timeliness of the information submitted. Failure to submit the Land Transaction Return and/or to pay SDLT on time will result in penalties. Interest is charged on both late paid tax and outstanding penalties.
Joint purchasers, such as a partnership, are jointly liable to pay the tax, although the proportion that each individual partner should pay can be subject to private agreement within the partnership.
Additional points practices should be aware of:
- SDLT regulations for freehold and leasehold properties differ.
- SDLT may be payable on certain changes to the lease. For example, lease renewals have the same SDLT implications as new leases.
- A sale and leaseback would normally trigger two payments of SDLT; one by the purchaser of the surgery and the second by the tenants on completion of their lease. However, you can claim tax relief on the lease element of the transaction if the seller and the tenant are identical. Be aware though that this doesn’t get you off the hook for ever – the SDLT will become due on the first lease assignment.
- If SDLT was paid in full when the lease was originally entered into, it is only payable on the premium element of any lease assignment. As most GP surgery leases are 25 years or less and have no premium value, surgery lease assignments are usually SDLT free.
- Some changes in partnership arrangements may incur SDLT. This is a particularly complicated area, but introducing and withdrawing property from a partnership are both chargeable events, regardless of whether the name on the lease or at the Land Registry changes.
- If an original lease term expires, but the tenant remains in occupation of the premises, it is called holding over. Once the lease runs past its contractual expiry date, it is treated as if the original term of the lease has been extended by one year. If SDLT was paid at the outset of a lease, or if the additional year takes the lease over the SDLT threshold, then a further SDLT return will need to be filed with HMRC and relevant tax paid. This is required for each subsequent year the lease is held over.
If a rent review occurs within the first 5 years of a lease, SDLT should be recalculated using the new rent for the remaining years, and a new submission made to HMRC. This can result in either additional tax to pay, or a refund in the event SDLT has been overpaid.
If you need advice on SDLT payments for your practice or any other matter related to your Surgery building, contact DR Solicitors on 01483 511 555, or email at info@drsolicitors.com.
News
Should a GP practice accept gifts and legacies?
Every now and then, a practice might be fortunate enough to be remembered in a patient’s Will or to receive gifts from grateful patients. Research has shown that the proffering of small gifts is relatively common place. Whilst it is obviously nice to be recognised for one’s good work, it does give rise to a number of professional and legal issues.
Professional issues
Good Medical Practice Guidance states that “You must not encourage patients to give, lend or bequeath money or gifts that will directly or indirectly benefit you.” However you “may accept unsolicited gifts from patients or their relatives” provided that it doesn’t affect the treatment you provide.
Whilst this appears to permit the receipt of unsolicited gifts and legacies, there is a big caveat. In each case, you must “also consider the potential damage this could cause to your patients’ trust in you and the public’s trust in the profession. You should refuse gifts or bequests where they could be perceived as an abuse of trust.” This is clearly a judgmental matter which will be easier to balance for a box of chocolates than for a £100k legacy.
Legal issues
The PMS and GMS Regulations are clear that practices must keep a register of gifts from patients or their relatives that have a value of £100 or more. You should record the name, the NHS number or address of the donor, the nature of the gift, its estimated value and the name of the recipient.
The next question which arises is how should the gift or legacy be shared?
To determine the answer to this question, you need to look at both the gift or legacy itself and the partnership deed.
For example, a legacy may be left ‘to the partners at the XXX Surgery’. So has the gift been left to the GP partners individually in equal shares, or left to the partnership to be divided between the partners in their respective profit sharing ratios? Was it intended for the partners in the practice at the time the Will was written, at the time of death or when the legacy is actually received? Alternatively, is it actually intended for the benefit of the patients and therefore shouldn’t be taken as income at all, but rather invested in healthcare within the practice area? Sometimes the intended purpose is clear because the donor has perhaps left a letter of wishes stating how they want the money to be spent or shared. Unfortunately, this is frequently not the case and a large legacy can often be a source of dispute between the partners.
Recommendations
Practices need to be careful about what gifts and legacies they accept and how these are recorded. The larger the gift, the more care needs to be taken.
Remember that this is, at heart, an ethical issue and whatever decision you make, would you be comfortable in justifying it in front of the GMC, or perhaps even a journalist?
For larger gifts and legacies, in addition to recording them in the gift register, we would recommend that you prepare a paper trail setting out your thinking behind the decision you took and any professional advice that you sought.
You would also be well advised to check what your partnership deed has to say about sharing of gifts and legacies to minimise the risk of future partnership disputes.
If you have any queries relating to legacies and gifts, or any other matter, then please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com
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Cheema vs Jones: The importance of an up-to-date Partnership Deed
Regular readers will understand the importance of keeping your partnership deed up to date. This is particularly true when new partners join, as this can easily supersede and invalidate the former partnership arrangements. A recent High Court case has demonstrated some of the risks.
The case of Cheema vs Jones
In this case, two GPs – who we’ll refer to here as A and B – entered into a partnership to provide medical services under a GMS contract. The terms of this agreement were set out in a Partnership Agreement which was signed in April 2016.
Shortly afterwards, A and B decided to admit doctors C, D and E into an expanded partnership, and it was agreed that this larger partnership would start on 1 July 2016.
Solicitors were instructed to prepare a new partnership agreement. However, before the terms could be finalised a dispute arose between A and B. Matters escalated and when B was prevented from seeing patients and refused access to medical records, B obtained a High Court injunction allowing him back into the surgery.
A, C, D & E then served a Notice on B dissolving the partnership. Their intention was presumably to exclude B, enabling the others to continue the practice without him.
The High Court agreed with A, C, D & E that a Partnership at Will had been created in July 2016, and the April Partnership Agreement was no longer relevant. They were therefore entitled to dissolve it by serving notice on B.
Consequences
Sadly, A, C, D & E’s High Court victory was pyrrhic. By dissolving the partnership they immediately put the GMS contract at risk since this was held by a Partnership which no longer existed. Within weeks the practice had been given notice by NHS England and a temporary contract to ensure continuity of care had been placed with another practice.
Key lessons
- When you are considering admitting a new partner to the practice, make sure you agree the terms of the partnership in advance. This can be either a Deed of Accession to the existing Deed, or by signing a new Partnership Deed.
- Always issue a comprehensive partnership offer letter to prospective new partners. This will set out the key terms of the appointment and help ensure the current partnership deed continues, at least in the interim. For more information see: Why is a partnership offer letter so important?
- Probationary periods are not relevant to the continuation of the ‘old’ partnership. Once a new partner joins, the old partnership arrangements fall away unless there is strong evidence to the contrary.
- It is always very risky to dissolve an NHS medical partnership. The contract and the future of the practice is immediately put at risk. Dissolution is such a draconian step it should normally only be undertaken as a last resort and with very careful contingency planning.
- Having an up-to-date partnership deed is your best protection in the event of a dispute. It can be invalidated in whole or in part for a number of reasons, so you should revisit it on a regular basis. For further information see: The dangers of having an out of date partnership deed
Our recommendations
The Partnership Agreement is a critical document for managing your practice and securing your future. Revisit it regularly, always use a solicitor who is experienced in Primary Care matters, and don’t rely on unregulated ‘advisers’ or borrowed templates.
For all your partnership matters, please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com
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Can you rely on your ‘green socks’ clause?
Making the decision to expel a partner is never an easy one and the reasons for doing so will vary widely.
Some situations will be straightforward. A partner may, for example, be found to be in clear breach of the partnership deed if there is an issue of gross misconduct. Unfortunately, less clear-cut circumstances are more common, such as a personality clash that is causing disfunction within the partnership and preventing it from operating effectively.
In these instances, a ‘green socks’ clause could be the answer. But can they be relied upon in practice?
What is a green socks clause?
A green socks clause is a clause that can be included in a partnership agreement, which allows partners to be expelled on ‘no fault’ grounds. Its name refers to the fact that the reason for expulsion could be as innocuous as wearing the wrong colour socks.
An example of when you may wish to use such a clause would be an under-performing partner. An under-performing partner can create unease in a practice, resulting in low morale amongst other partners and employees. Having the ability to expel such a partner, without having to rely on ‘with fault’ grounds, can be an attractive option and is often seen as an ‘easy’ way to resolve the problem.
Are green socks clauses legal?
For a green socks clause to be added to a partnership agreement, all partners must agree – which means there is no reason why it should not be effective in law. However, should an expelled partner decide to challenge their expulsion, the Courts will check that the correct process has been followed and that it has been carried out to the letter. They will also want to ensure that the process isn’t being abused in anyway, for example as a way to discriminate against an individual.
What can you do to reduce the risk?
Exercising a green socks clause is effectively relieving someone of their livelihood and their business, without explanation or rationale. For this reason, the courts will be very strict. Even the smallest deviation from the process is likely to invalidate the expulsion and expose the expelling partners to the risk of a counter claim. The Courts may also want to convince themselves that the underlying reason is not illegal (such as discrimination) so may well want to understand the expelling partners’ reasoning.
Remember that if the matter does become litigious, the process of disclosure will require that all evidence is released. This will include any emails, paper notes and other records however stored, as well as witness statements. If any of these hint at either a deviation from the process or an illegal reason, the Courts would take a very dim view. Given that tensions will be running high and the expelling partners are likely to generate a lot more correspondence than the sole partner being expelled, this can be a risky process.
For these reasons, it’s always wise to seek legal advice well before an expulsion is made. This can help you to ensure that you fully understand the process, and that emotions do not overrun in a way which could cause problems later on. You will also want to ensure that some documents are covered by ‘privilege’ and thus are not disclosable.
Our recommendations
A well drafted green socks clause can be beneficial on two counts. It can encourage all partners to carry out their duties conscientiously, and it can make it easier to take action against anyone who falls below the required standards.
However, they should not be seen as the ‘easy option’. A better starting point where there are problems is usually to consider whether a ‘with grounds’ expulsion clause can be used.
Green socks clauses are best avoided in two-man partnerships because they become too unstable. They should also be avoided in partnerships where two or more partners are closely related. This is because the relatives are unlikely to vote against each other, effectively meaning the green socks clause can only be used against the non-related partners.
It is good practice to ensure that unanimous consent is required to exercise a green socks clause – something which is often difficult to achieve – and to include a mandatory mediation process and cooling off period.
Exercising a green socks clause is a very drastic step to take and the decision should never be made lightly. If you are considering the expulsion of a partner, we strongly recommend that you seek legal advice as early as possible to maximize your chances of success.
For more information, please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com
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Will you or your practice be impacted by the MDU policy changes?
The Secretary of State recently announced some planned changes to the medical indemnity scheme. The plans are still in the early stages and not expected to be implemented for at least 12 to 18 months, but it seems clear that the state will be playing a larger role in medical defence insurance in future, which should hopefully assist in controlling the spiralling costs.
In response, the MDU announced that it will move from an occurrence based policy to a claims-made policy. Their rationale for doing so was to reduce the cost of the premium. It is not yet clear whether other insurers will follow MDU’s lead.
To understand the consequences of the MDU’s announcement, it is necessary to be clear on the difference between the two policy types:
An occurrence policy protects you from any covered incident that occurs during the policy period, regardless of when a claim is filed – even if this is after the policy has been cancelled. This means that when you retire, you can do so safe in the knowledge that if a problem should ever arise from your time in practice, you will be covered. It also makes it easier to switch insurers, because a new insurer does not need to concern themselves with the risk associated with events that happened previously: they just need to understand where and how you will be practising in future.
A claims-made policy protects you from any covered incident that is claimed for whilst the policy is in force, regardless of when the actual incident occurred. When you stop paying the premium the cover stops, even if the incident occurred whilst the policy was in force. This means that when you retire (and stop paying your insurance premiums), you are not covered for any claims that may arise relating to your time in practice unless you buy “run-off” insurance. Such cover can be expensive, so make certain you understand how the premium will be calculated before signing up to the policy.
Switching from an occurrence policy to a claims-made policy is likely to save you money in the short term, since the occurrence policy will cover everything arising from the past, and an incident would have to both occur and a claim be made in the first year of the new claims-made policy for it to be covered. However, this ‘saving’ will likely catch up with you when you need to buy run-off cover to retire or move back to occurrence based insurance. The Government has stated that they do not currently plan to offer run-off cover in the state-backed scheme.
If you are considering taking out claims-made insurance, here are some things you should consider:
- Firstly (and most obviously) don’t let your existing professional indemnity insurance lapse until the new scheme is active and you have the policy in place.
- Look at your partnership deed – it may prohibit you from taking out claims-made insurance, and even if it is not prohibited, it probably doesn’t explain how to deal with the risks of a claims-made policy and in particular the risk that a retiring partner doesn’t buy adequate run-off cover. It is difficult to ensure a retired partner maintains run-off cover once they have left the partnership, which leaves the remaining partners at a risk of picking up residual liability in the unfortunate event of a claim being made (see our recent article on joint and several liability).
- Check the status of any clinical employees and sub-contractors – are they expecting to be covered by the practice’s medical defence insurance? They will most likely want to reassure themselves that they are covered for all their actions whilst employed, regardless of when a claim is received. This will need to be set out in employment contracts and locum agreements.
- If you’re considering merging with another practice, you will be well advised to investigate the type of insurance policies which have been and currently are in place, since claims-made policies will enable the risk to transfer from one practice to another. This is likely to significantly increase the amount of due diligence that practices should undertake before considering a merger.
Our recommendations:
For more information, please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com
- Discuss with insurance brokers whether there are opportunities for remaining within an occurrence-based insurance scheme until any government alternative is avalable
- If you are considering moving to a claims-based policy, seek legal advice on how this will impact your partnership agreement, employment contracts and other key contracts.
- If you do decide to stay on an occurrence-based scheme, then you should ideally ensure that all partners are obliged to do the same We would recommend seeking the help of specialist, professional advisers to help you navigate the changes to the medical indemnity scheme.
News
Can a GP practice have limited liability?
As Primary Care changes, we are frequently asked about different business vehicles and in particular whether a GP practice can have limited liability. Choosing the right type of business vehicle for your GP practice is not always straightforward, and managing risk is likely to factor highly in the decision making process.In this article we look at the issue in more detail, explaining the different business vehicles and their potential implications.
Unlimited liability partnership
Most GP practices currently operate as unlimited liability partnerships. This means partners are “jointly and severally” liable in the case of any financial problems. Creditors and other litigants are free to sue all the partners in the partnership to recover their losses, regardless of who caused the problem. What is more, each partner is liable up to the value of the whole of the debt. This means that creditors are able to look to the personal assets of all of the partners until the debt is settled in full or there are no personal assets left. Although your partnership deed will specify how you share profits and losses between you, your creditors will have no regard to this and will typically simply look to find ‘the deepest pockets’.
Although unlimited joint and several liability can be a frightening concept, it has historically not been a major concern for GP Practices since the clinical negligence risks are mostly insured against. However, as practices have become larger and more complex, other risks have become important and need managing or protecting against.
Limited Liability Company (Ltd)
A limited company is the vehicle of choice for most businesses in the UK. A limited company is managed by directors and owned by shareholders. If a limited liability company is unable to pay it’s debts, it becomes insolvent. Creditors are not normally able to ask the shareholders or directors to contribute to losses, so liability is limited to the capital which the shareholders have introduced to the company, plus any other assets (such as retained profits) the company might hold. Importantly, the personal assets of shareholders and directors and generally protected from creditors.
GP practices are, in principle, able to operate as limited companies. However, the consent of NHS England is required to move the GMS or PMS contract to a limited company and they have historically been reluctant to agree. There are also regulatory restrictions about who can own a company delivering GMS or PMS services, which will need to be secured in the Company Constitution. Moving a practice from an unlimited liability partnership to a limited company is not a straightforward process, so anyone thinking of going down this route should always seek specialist legal advice first.
Another way limited companies can be used is to manage the largest risks in the partnership. For example, the surgery could be held in a limited company, while the practice is kept as an unlimited liability partnership. This is a reasonably common model for practices to adopt.
Limited Liability Partnership (LLP)
An LLP is an alternative legal structure that is commonly used by professional services firms, such as accountants and solicitors. It enables a business to operate with a partnership structure (where ownership and management are one and the same), whilst limiting the liability of the partners and protecting their personal assets. As with a limited company, it is a matter of public record how much capital each of the partners have put at risk.
We are often asked about LLPs since they superficially appear to be an obvious solution for GP practices, but they are unfortunately not permitted business vehicles for GMS or PMS contractors. If a practice were to be set up as an LLP, it would put these contracts, staff pensions, and much more at serious risk.
Other options for managing liability:
Insurance
One route partners may take to gain greater protection for their personal assets, is the purchase of specialist insurance. All NHS GPs are obliged to take out professional indemnity insurance against one of their biggest risks – professional negligence claims. The same approach can be taken to other risks to the financial wellbeing of the practice as well. Possible examples include life insurance, key man insurance, or mortgage repayment insurance.
Indemnities
As discussed above, to the outside world all partners are jointly and severally liable for the losses of the partnership. This can, of course , seem quite unfair so it is reasonably common for Partnership Deeds to provide that partners are responsible for the consequences of their own negligent or unapproved actions. These clauses are called ‘indemnities’.
Whilst fine in theory, the obvious problem with this approach is that if the individual concerned runs out of money, the other partners will still be exposed to the remaining debt. Also, it is often difficult to link a loss directly to the negligent actions of a single individual. More commonly, a problem is a result of a series of unfortunate events, where several people could have intervened, but failed to do so.
Our recommendations
Sadly, there isn’t a single, simple solution when it comes to managing liability in a GP practice. All the options we have detailed come with their own difficulties, and we are conscious that as healthcare becomes more ‘commercial’ it is also becoming more risky commercially.
We would always recommend seeking professional accounting and legal advice before making any decisions, to ensure you understand the full implications of the options which are available to you. The ‘right’ answer for your practice will depend on your individual circumstances and your appetite for risk.
For more information, please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com
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Can a partner work outside of the practice?
The question of whether a GP partner can work outside of his or her practice, and under what constraints, is a common one. A survey by Pulse reveals GP partners have seen their pay drop by an average of 4%, so topping up earnings with private work can be an appealing option.
Typical scenarios include:
- A part time partner who wishes to work elsewhere in their remaining sessions
- A full time partner who wishes to work elsewhere during their annual leave
If you have a Partnership Deed
For practices with a Partnership Deed, it should clearly state what the agreed rules are, along with all associated obligations and restrictions. It should also make clear the implications of breaching such obligations, for example potential financial penalties and what may ultimately be grounds for expulsion.
A well drafted deed should include:
- A clause requiring that the partners need to give their approval for any outside work to take place
- Limitations on any such work, including the number of hours that can be done, the location, the type of work, etc
- The need to pool any unapproved outside income
- The need for any partner working elsewhere to pay back a proportion of their medical defence cover
- An obligation to act in the best interests of the partnership at all times
One area that can cause some confusion is when senior employees are called ‘partners’ – one example being a ‘salaried partner’. In these instances, you will need to refer back to the individual’s employment contract. (You can read more about the differences between a salaried and fixed share partner here – Salaried vs Fixed Share Partners).
What happens if you bend the rules?
Another area where partnerships can sometimes run into problems is when they have previously allowed partners to work elsewhere in breach of the Partnership Deed. In these cases, it is unlikely that these clauses can then be relied upon in the future.
The practice may be deemed to have varied the deed and it would be wise to seek legal advice on how best to move forward.
If you don’t have a Partnership Deed
If no deed is in place, then the answer falls to the 1890 Partnership Act. While the act itself has little to say on the subject of working outside of the practice, it does state that partners cannot compete with the partnership and must act in good faith at all times.
It is unlikely that these obligations would be breached by a moonlighting partner but it would need to be judged on a case by case basis. It would also be very difficult and expensive to try to enforce these obligations.
Our recommendations
The best protection for your business will always be to have a Partnership Deed in place that you can rely on and which clearly sets out all obligations and sanctions. If you don’t have a deed, or it is lacking, or out of date, then seek the advice of an experienced legal team.
For more information, please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com
News
Salaried vs Fixed Share Partners
Managing partnership changes and staffing are two of the most common issues any practice will deal with and how they are handled can have long term implications, especially in relation to a new partner joining the business.
One area that can cause confusion is the difference between a ‘Salaried Partner’ and a ‘Fixed Share Partner’. The two terms are often used interchangeably, but they are very different and it’s important that a distinction is made.
Here, we look at the key differences and the implications they may carry for your practice.
What is a fixed share partner?
A fixed share partner is an owning partner in the business. As such, they should sign the Partnership Deed and will have whatever rights and obligations are stated therein.
- As a partner they won’t have employment law protection
- They will have an agreed minimum monthly income and additionally some form of profit share
- They will share in the losses but may be indemnified against some or all of these by the other partners
- They will have injected some capital into the business
- They will be entitled to attend meetings and to participate in partnership decisions
- They will have voting rights
- They will not be controlled by other partners
- They will be taxed as self-employed individuals
- They will be entitled to opt in to the NHS partner pension scheme
- They will have some ownership over the GMS contract and potentially also the PMS contract
What is a salaried partner?
In contrast, a salaried partner is normally a title given to a senior employee. As such, they won’t sign the partnership deed and will be working under some form of employment contract (even if it is called something else).
- They will be entitled to a salary and potentially some bonuses – although usually not related to profit
- They will have full employment law protection
- They will be at no risk of sharing any losses
- They shouldn’t have any voting rights in the partnership and there will be elements of control by the other (owning) partners.
- They are taxed as an employee paying PAYE & NI
- They are entitled to opt in to the NHS employee pension scheme
- They will have no ownership over the GMS contract and would not normally have any interest in the PMS contract
- They must guard against third parties regarding them as ‘real’ partners and thereby inadvertently becoming liable for the partnership debts.
Why does it matter?
Typically, what practices are trying to achieve with a Fixed Share Partner is a partner who has many of the characteristics of an employee, while a Salaried Partner will typically be an employee with some of the characteristics of a partner. The problem is that the law only recognises employees or partners, there is no middle ground.
The most important point to remember is that the title itself does not determine the real status. That can only be established by analysing the detail of the arrangement.
If a title is mismatched to the actual legal status of the person, there is a risk of creating legal uncertainty. This could lead to any number of future problems, most of which will be costly to resolve.
Our recommendations
We will consider the pros and cons of each option in a future article, but our main piece of advice for anyone considering appointing or becoming a fixed share or salaried partner, is to ensure you are clear from the outset about the outcome you are seeking to achieve.
The starting point is to decide whether you are welcoming a new partner, or a form of senior employee. All other aspects of the role flow from there, and it is important to ensure that you don’t accidentally incorporate key features of one type into the other. This is all too easily done and the consequences of getting it wrong can be serious.
If you’re going to make staffing changes, especially if those changes are to a ‘partner’ role, please make sure you seek specialist advice to ensure the arrangement is documented appropriately.
For more information, please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com