Bank Holidays – how to ensure all partners have a happy New Year
Most GP partners will have enjoyed some much needed time off over the Christmas and New Year period and it won’t be long before the next bank holiday arrives. One question which we are frequently asked is how partnerships can fairly apportion bank holidays so that part time partners don’t miss out.
The challenge
Because the majority of bank holidays fall on a Monday or Friday, a part time partner who does not usually work on either or both of these days may feel they are unfairly ‘losing out’ on any benefits their full time partners receive in relation to bank holidays.
For example, in a job share where partner A works Monday and Tuesday, and partner B works Wednesday to Friday, in 2017 seven bank holidays will fall when partner A is scheduled to work, whilst only one bank holiday will fall on a day when partner B would otherwise be working.
So, how can you best manage this issue?
Your options
Because partners are not employees, there is no statutory right to paid bank holidays. How you choose to deal with bank holidays is a commercial decision to be decided between the partners. However, to avoid a potential claim of discrimination, you should ensure that part time partners are treated no less favourably than full time partners and it is sensible to ensure that any scheme you do put in place is fair.
So, what are your options?
- Pro rata entitlement – One route you can take is to add all holiday leave and bank holidays (based on a full time partner) together, then calculate the total leave entitlement pro rata, based on the number of days to be worked. Everyone then gets an equivalent total amount of leave but the problem is that the bank holidays are fixed days so part timers working on a Monday will have less discretion over their days off than those working on, say, a Wednesday. If you regard this as a problem, you could come to an agreement whereby, for example, any partner forced to use more than a given percentage of their total leave allocation on bank holidays is given an additional day of paid leave.
- No adjustment – A less popular option, but one which is followed by some partnerships, is for there to be no adjustment at all for any part time partner. If a bank holiday falls when you are scheduled to work, then lucky you and bad luck if it doesn’t fall on your scheduled day! The problem with this option is it may become hard to persuade part timers to work mid-week.
- Profit Share adjustment – an alternative mechanism is to calculate profit shares based upon actual sessions scheduled to be worked. Since bank holidays are known in advance, the profit shares can be adjusted to account for them. This is a complicated option leading to small annual changes in profit shares and is, therefore, unusual.
Conclusion
Whichever option you choose, the most important thing is to ensure that it is clearly set out in your partnership deed and, of course, that your partnership deed is up to date and valid. Older partnership deeds, in particular, tend not to cater well for part time partners.
Without a valid partnership deed, there will be no formal entitlement to leave of any kind and no clarity – for example, on what you will earn when you are absent, or who should pay for locum cover.
Our handy checklist 8 signs that your Partnership Deed needs an update may help you decide if it’s time to update your old deed.
Our recommendations
In our experience, rolling all holiday leave and bank holidays together to generate a pro rata entitlement can work well. However, as we’ve already mentioned, ultimately it is a commercial decision that needs to be taken by partners working in the best interests of the practice.
For more information about partnership deeds, or for any other enquiries, please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com
News
Planning to retire? Don’t forget about your lease liabilities
If you’re a partner in a GP practice and have decided to retire, then there are many issues that both you and the remaining partners need to consider. Making a smooth exit is likely to be top of your agenda and one important area that can often be overlooked is dealing with lease obligations.Your responsibilities will vary depending on how the lease is ‘owned’. Here, we examine three of the most common scenarios and what the implications may be, along with offering advice on how best to mitigate any liabilities.
1. Named at Land Registry
If your lease term is for a period of seven years or more, then it should be registered at the Land Registry. It is also possible to register leases of a shorter term, although this is rare.
Leases registered at the Land Registry are available to the public and show you as having rights and obligations associated with the property. Public bodies and other third parties with an interest in the property may, therefore, look to you and the other named parties to meet any obligations that arise.
When you leave the partnership, assuming you are also intending to leave your lease liabilities behind, it is important that you sign a TR1 to remove your name from the Land Registry and transfer the title to an ongoing member of the partnership. There can only be 4 people named on the Land Registry title at any one time, so if there are more than 4 ongoing partners they will have to agree who gets to replace you.
2. Named tenant on the lease
If you are named on a lease or have taken over the lease by way of a formal assignment, then the landlord will look to you and the other signatories as joint tenants. You will have responsibility for fulfilling all obligations under the lease and your liabilities will be unlimited – unless you have agreed anything different with your landlord. If any problems arise, such as unpaid rent, required repairs or dilapidations, the landlord could potentially sue you to put things right. Unlike the Land Registry title there are no restrictions on the number of signatories to a lease, so all the partners will usually sign the lease in order to share risk equally.
Once you leave the partnership, you will have little control over what happens to the building, and if your name remains on the lease you cannot easily manage any risk. You will normally want to sign a Deed of Assignment as soon as possible.
A landlord, by contrast, will typically want a minimum number of partners named on the lease at all times so that he can hold as many people as possible personally liable. This can be an issue, particularly in smaller partnerships with recruitment problems, and is commonly known as the ‘last man standing’ problem. There are several ways to mitigate the problem, but it is always advisable to seek legal advice at an early stage if you think you may be facing this situation.
3. Tied into the lease via the Partnership Deed
A partnership deed will typically document a trust relationship, which seeks to ensure that those partners who are not named at the Land Registry or on the lease, will still have the same rights and obligations as those partners who are. This helps ensure everybody is treated equally. Some partners will, therefore, find that they are able to retire without having to notify either the land Registry or their landlord.
However, just because you retire doesn’t mean that any obligations under the partnership deed will end. It is important when leaving a partnership, to understand what you are responsible for and whether the partnership deed permits you to be released from these obligations.
If you don’t have a valid partnership deed, or it is unclear about this issue, then the safest course of action is to draw up a deed of retirement, which will document which past and future obligations you are released from.
In the event that it proves impossible to eliminate all liabilities associated with the lease, another option would be for the partners to provide each other with indemnities against any claims. Just be aware that such indemnities need to be very carefully worded, as they are often contested when one party seeks to enforce them.
Other considerations
Dealing with lease obligations is just one of the many areas that need consideration when you retire. For more expert advice on what to think about and the steps you can take to cover off your risks, see our Retirement Planning Checklist.
For more information about any of the issues covered here, please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com
News
Are you overpaying your landlord?
The issue of NHS premises funding is a complex area which is often misunderstood by GP practices. This confusion sometimes results in practices inadvertently overpaying their landlord.If you don’t own your own surgery then you must be occupying it on some form of tenancy basis, – whether that agreement is in writing or not – and you should be receiving rent reimbursement. Here we take a closer look at what rent reimbursement is supposed to pay for, and how you should be managing it.
Understanding rent reimbursement
Rent reimbursement comprises two parts:
- the rent
- a contribution to the repairing and insuring of the building – commonly referred to as the ‘uplift’
The rent element is normally the same as the rent agreed in your lease, and practices will often pay this straight to their landlord. The uplift element will vary, but is usually between 5% and 7.5% of the rent, with the amount being determined by the terms set out in the lease.
The uplift may be paid to the landlord or retained by the tenant, dependant on what is stated in the terms of the lease. This is the element which most commonly gives rise to confusion
The uplift
The uplift is a contribution towards the repair of the exterior and structure of the building, along with the cost to insure it. To determine who should receive the uplift monies, you need to be clear about who is responsible for which aspects of the building.
Some common situations are:
1 – The practice occupies the entire building
If you occupy the whole building, you are likely to have a full repairing and insuring lease. In this situation, you will be responsible for dealing with all the repairs, so the practice should keep the uplift.
If your lease only requires you to repair the internal parts of the building, then the landlord should probably receive the uplift element as part of their rent. They will have responsibility for repairing and insuring the exterior and structure of the building, without any additional costs being passed on to you as tenant. Practices often assume that this is the case when the occupation is undocumented, but be aware that your landlord may see their responsibilities vey differently!
2 – The practice occupies part of a shared occupation building
If you share occupation of a building with other tenants (known as a ‘lease of part’) it is likely that your landlord will be responsible for managing all repairs to the building and will then pass on the cost of these to you through a service charge. In this scenario, you should keep the uplift but regard it as a contribution towards your service charge. Since the uplift is a fixed amount, you may also want to talk to your landlord about capping the level of service charge that can be demanded.
3 – No formal agreement in place
A third scenario, which is relatively common for GP surgeries, is for there to be no written agreement in place but for the landlord to historically have repaired the building. In this case, there is a good argument that the uplift monies should be paid to the landlord. However, in the absence of a lease or other contractual agreement, there is scope for an expensive dispute to develop. A starting point would be to see what you have historically paid over.
4 – Occupying a surgery owned by former partners
Some practices may be occupying a surgery which is owned by former partners. Sometimes the current partners in such practices will receive notional rent and pay that money across to the owners. However, that is a mistake. The correct course of action would be to notify NHS England and move to a formal lease and rent reimbursement. By not doing so you could be putting your premises funding at risk and in extremis NHS England could demand the return of monies paid incorrectly in the past. You are also likely to be paying the wrong amounts of money to the owners and former partners.
Disagreements and disputes surrounding funding can typically come to the fore when a lease is being prepared for the first time and it has historically been unclear who paid for the structural and external repairs to the building. To help you navigate such issues, it is always best to seek the advice of an experienced legal professional.
If you are in any doubt about your practice’s position or responsibilities in regards to funding, repairs and service charges, then please speak to us for some initial advice. Contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com
News
GP practice funding: What you need to know about the District Valuer
Most GP practices will come into contact with the District Valuer Service (DVS) at one time or another. The DVS plays a key role in issues surrounding GP premises funding and has the potential to significantly impact on a surgery’s finances. There are many reasons why a practice and the DVS may cross paths, including: notional rent reviews, practice valuations and in relation to proposals for significant building works. What’s important to remember is that the DVS is working to protect the interests of NHS England, not your practice.
In this blog, we take a closer look at the DVS, what it is responsible for and the steps you can take to strengthen your position when faced with any negotiations.
What is the DVS?
The DVS falls under the specialist property arm of the Valuation Office Agency (VOA). It provides independent valuation and professional property advice to bodies across the entire public sector, and where public money or public functions are involved.
What does the DVS do for Primary Care?
One of the key roles of the DVS is to advise NHS England on whether the financial dealings of a GP practice represent value for money. It does this in accordance with the 2013 Premises Costs Directions, which apply to all new applications for funding. (For any funding that falls under the 2004 directions, its functions are slightly different, but for this article we will focus on new applications made under the 2013 directions).
The main responsibilities of the DVS include:
Notional rent – Setting the level of notional rent and agreeing to any supplements.
Purchase price – Ensuring that the amount being paid for the purchase of new GP premises is a fair market price.
Premises development – Assessing proposals for significant premises developments (such as the building of an extension), or the construction of new premises.
Sale and lease back arrangements – Ensuring that the sale price and lease arrangement offers good value for money.
Financial assistance – Approving financial assistance towards running costs and service charges.
Grants – Ensuring any grants being offered by NHSE are good value for money, including premises improvement grants, mortgage redemption or deficit grants, and grants relating to the cost of converting back former residential property.
Minimum sale price – Where a guaranteed minimum sale price for surgery premises has been agreed – such as in areas of high deprivation where property values are low – the DVS will advise NHSE on an appropriate minimum sale price and ensure that any sale agreed below that price represents a realistic market value.
Rent reimbursement – When a leased surgery may be entitled to rent reimbursement, the DVS will advise NHSE on whether the proposed terms of a new or changed lease represent value for money. It is therefore necessary that you obtain NHSE approval before any lease is signed or varied.
How can you protect your interests?
For any practice, securing the best possible deal from any funding negotiations is a top priority. One of the most effective ways to protect the interests of the practice and ensure you don’t miss out financially, will be to call on the services of an experienced healthcare surveyor. They will be able to conduct an independent review of the DVS’ conclusions and negotiate on your behalf.
It is also advisable to seek specialist legal advice from the outset, to help you navigate the complex processes and procedures that surround lease agreements, premises development and all other related issues.
For more information about GP funding, lease negotiation, or any other issue associated with GP practices, please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com
News
Should you promote a non-GP into your partnership?
The changing nature of running a GP practice, with all its pressures and complexities, means that most GP partnerships now recognise the need and benefit of having skilled managers supporting them.
One area where this is having a noticeable impact is within the structure of GP partnerships themselves. While it is still relatively rare, it is becoming more common for non-GPs- such as nurse practitioners, business managers or practice managers – to be offered partnership.
There are many reasons why a GP partnership may consider going down this route and it can have potentially broad-reaching benefits for a practice. Here, we take a closer look at what those benefits may be, along with the key legal issues that can arise.
Key benefits
Motivation & commitment
- For a manager, the offer of a partnership may be seen as fair reward for their enterprise, commitment, and business acumen
- Promoting a manager may help you retain a key member of staff
- It can incentivise and motivate employees as it demonstrates a clear career path
Practice profitability
- Being the part-owner of a business rather than an employee can have a positive effect on perspective, encouraging a manager to think about the future and long-term viability of the practice
- Partnership provides a direct link between income and the overall financial success of the business, which can incentivize a manager partner to help maximize profitability and find new sources of income for the practice
Stronger partnership
- It can bring greater stability to a partnership, as the more partners there are, the less likely you are to face the ‘last man standing’ issue
- It can change the dynamics of a partnership for the better
- A manager may also introduce equity to the Partnership when he/she joins
Legal issues to consider
There are many legal issues that need to be considered before an offer of a partnership is made or accepted. It is also worth noting that a non-GP partner cannot be left as the ‘last man standing’, as they cannot (in most circumstances) hold the medical contract. So generally speaking you will always need at least one GP or other appropriate clinician to be part of the partnership.
Here’s what else you need to think about:
Personal liability: A full non-GP partner would assume unlimited liability for the debts and liabilities of the practice because he or she would be an owner of the business.
Practice insurance: Whilst a GP partner currently secures 100% indemnity insurance in respect of clinical claims, a non-GP partner would risk being sued if their responsibilities are not adequately documented. Therefore, the practice needs to ensure it is adequately insured.
Employment rights: These do not apply to profit-sharing partners because
they are independent contractors, not employees. Partners are not automatically eligible for authorised leave such as parental, maternity and paternity leave, or for the remedies for redundancy or unfair/constructive dismissal unless the partnership deed says so. An employee promoted to partnership would lose these rights.
Tax: As a profit-sharing partner, a non-GP partner would be classed as self-employed so would have responsibility for paying their own tax and national insurance contributions under Schedule D.
Pension: A non-GP partner can be part of the NHS pension scheme, and will join as whole time officers. Employees should take specialist IFO advice to ensure they understand this point before committing to the change in status.
Surgery premises: Will you require the manager to buy in? If so, contact your mortgage provider and any landlord (if applicable) to get their consent and check on any additional requirements. You will want proof of the person’s financial standing before they buy in.
Partnership deed: This would need to be amended to include the non-GP partner. The obligations clauses should ring-fence their exposure to non-clinical issues and responsibilities. You may also consider adding an indemnity from the other clinical partners, in respect of all other third party claims.
Areas of management/voting rights: You may consider limiting the manager’s liability to non clinical areas, such as finance, HR, premises management, IM&T, and data management, and potentially to restrict their voting rights to these areas.
One alternative, if you decide that a full profit sharing partnership is not going to be right for you, would be a so called “salaried partnership”. This offers a middle ground, whereby the non GP manager will continue to be employed as a staff member, whilst enjoying the status of partnership. They will retain all their employment rights with none of the risks or responsibilities associated with unlimited liability.
As with any major decision regarding your practice, it is always vital that you ensure that all parties involved are fully aware of the legal considerations and other implications before any formal steps are taken.
For more information about GP partnerships or any other issues associated with GP practices, please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com
News
Thinking of handing back your GMS/PMS contract?
Whether you’re in a GP partnership or a single hander running your own practice, there are likely to be times and situations that prompt you to re-evaluate your position. Maybe you find yourself facing challenging circumstances, such as a dispute, or financial pressures which are making the practice unprofitable. You may feel your individual risk is too great if you have an insufficient number of partners to share the burden, or you need to act now to avoid the ‘last man standing’ issue. It could also be that you’re planning to retire or simply just wish to make a change….
Whatever the catalyst may be, one option you might be considering is handing back your GMS or PMS contract. Traditionally, opting to go down this route was rare but it is now becoming far more common. However, it can have serious implications, so before making any decision it is important to understand what the consequences may be and also what the alternatives are.
What does it mean?
To hand back your GMS/PMS contract, you first need to give notice in writing to NHS England in accordance with the regulations. The GMS notice period is 6 months for a partnership and 3 months for a sole practitioner. The GMS contract will come to an end on the last day of the month in which the notice period expires. The required PMS notice period is a minimum of 6 months regardless of the type of contractor.
By terminating your primary care contract your patient list will return to NHS England and your obligations to provide patient care will cease. You haven’t, however, closed your business. You have therefore stopped your income stream (including any rent reimbursement), but your expenses will continue to accrue until you finally close the business or find an alternative source of income.
The cost of closing a business can be significant and includes things like staff redundancies and meeting any lease or mortgage obligations. Most leases won’t allow you to break a contract early, even if your circumstances have changed, so your rent and any service charges may continue. If you have a mortgage, you may find you become liable for an early redemption penalty, which could run into hundreds of thousands of pounds. There are also likely to be a number of administrative and contractual relations which need terminating, some of which could give rise to further unexpected liabilities.
So it is important not to look upon handing back your GMS/PMS contract as a ‘soft’ option or stand alone solution; taking this route needs to be a very well planned and thought-through process, if you are to manage the many financial and legal implications.
What are the alternatives?
- For a single hander, an alternative route to consider would be to take on a new partner, or multiple partners, who would be able to take over the practice, allowing you to step down.
- For a partnership, a merger with another GP practice could be a way to open up new opportunities and other options.
- You could also look for another healthcare provider who may be willing to take over your contract, such as a GP federation, a local hospital trust or a private provider.
- Don’t forget that your local commissioner (CCG or NHS England) can work with you to help find an acceptable solution, potentially through financial assistance or other support mechanisms, since receiving the patient list back becomes an expensive problem for them to solve.
Conclusion
Handing back your contract can be the right answer in some circumstances, but it is an option which should never be entered into lightly. Make sure you have taken the right accounting and legal advice and are confident you fully understand the ramifications before you make your final decision.
For more information about handing back your GMS/PMS contract, mergers, retiring from practice, or for any other enquiries, then please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com
News
When is a GP practice merger not a merger?
A GP practice may consider undergoing a ‘merger’ for a variety of different reasons. One common trigger is that a single-handed GP is looking to retire. Alternatively, two practices may be looking to join forces to save costs, share resources and provide new services. Historically, all such transactions have been referred to as ‘practice mergers’.
However, if the two parties involved have no intention of being in business with each other for any longer than is necessary to transfer the GP practice to new ownership, then the transaction is really more akin to a takeover or acquisition than a merger.
NHS England (NHSE) recently published policy guidance on such transactions, which makes a distinction between a ‘merger’ and a so called ‘partnership change’. This has become an important issue for practices to be aware of since transactions which are in substance acquisitions are treated differently from those which are true mergers. NHSE will normally need to be involved in all ‘practice mergers’ at some point and if you start off down the wrong track it can be difficult and expensive to unwind things.
The difference between a ‘merger’ and a ‘partnership change’
One key difference between a ‘merger’ and a ‘partnership change’ is the interests of the parties involved.
If the substance of the transaction is an acquisition, such as our earlier example of a retiring GP, they will want to offload as many of their liabilities as possible – ideally all of them – while minimising any exposure to future risk. They’ll also be looking to maximise the value of their assets before they are transferred and will have no interest whatsoever in the acquiring business.
By contrast, in a merger, both parties will have a continuing interest in the other’s business, and will want to work successfully together in partnership. They will want to understand the risks and liabilities associated with each practice and important questions will need to be addressed, such as who will be liable if an issue emerges with one of the legacy businesses. Would it be the future partnership? Or one, or all, of the partners in the legacy practice?
Why is this important?
Historically, NHSE was content to ignore the differences between a merger and an acquisition and the details of how each transaction was to be structured was largely left up to the parties. NHSE largely confined itself to enquiring whether or not the GMS/PMS contracts were to be merged. However, in a paper published in January 2016, different processes were set out depending on whether the transactions was a ‘merger’, a ‘partnership change’ as well as whether the contracts were to be merged.
For GP practices, most of whom tend to refer to all such transactions as mergers and often head up their business plans as such, this can lead to problems. NHSE can insist on things happening that the parties may not want, such as requiring all partners go on each other’s contracts – not something that will be intended in the case of a retirement.
Seeking the right advice
NHS England will often ask practices to set out their merger plans in a business case. This is a key time to get advice to ensure the plans adopt the right language and align to the desired process.
The practices are also well advised to agree a ‘Heads of Terms’ at an early stage in their merger talks. This sets out the substance of the deal, provides an initial timeline, identifies the known key issues, identifies the correct NHSE processes, and ensures that everyone is aligned in their expectations before spending too much time and money.
Practices then need to consider other matters such as whether the staff need to be transferred under Transfer of Undertakings (TUPE), what changes are needed to CQC registrations, the implications for premises funding and more. Whether they are called ‘mergers’ or ‘partnership changes’ such transactions are complicated and are best undertaken with expert legal assistance.
For more information about mergers or partnership changes, or for any other enquiries, then please contact Daphne Robertson on 01483 511555 or email d.robertson@drsolicitors.com
News
The dangers of having an out of date partnership deed
The pace of change in primary care has accelerated over the last few years and with so much going on it can be easy to forget to check you have the basics covered.
The Partnership is at the heart of most GP practices, and having a partnership deed that is up to date, valid and fit for purpose is vital if the interests of all partners are to be protected. Yet often a partnership deed may be forgotten, or only thought of, at times of major change or when a dispute arises.
Whilst most GP partnerships will be aware that having no deed at all is extremely risky, failing to keep it updated can also have serious implications.
Further reading: 4 legal issues to consider if one of your GP Partners “Burns Out.”
There are many reasons a deed may go out of date, or even be invalidated. So while you may feel you have everything already covered, if you haven’t looked over your deed recently then it’s probably time you did.
Some of the key issues you need to be aware of are:
1) A new partner has joined
While the retirement/removal of a partner won’t invalidate your current deed, the addition of a new partner does. Once your deed is invalid you are regarded as operating as a ‘partnership at will’. This is about the worst situation you can find yourselves in because it means your service contract and the entire practice is immediately at risk.
2) New income streams
An out of date deed will lack clarity, or won’t even deal with, the distribution of new income streams affecting a modern practice. How partners share any profits and losses is a frequent cause of disagreement, potentially resulting in a very expensive partnership dispute further down the line.
3) The sharing of risk
If your deed lacks clarity about the sharing of any ‘risks’ then it’s time for an upgrade. For example, what will happen if the CQC takes action against the Registered Manager? Does your CQC Manager pick up the liability, or will it be shared in some way by the partnership?
4) Asset valuation
We have seen an increase in the number of disputes arising out of the valuation of non-property assets owned by the practice. Examples include pharmacy shares, GP Federation shares, and even legacies. When a partner leaves, should they be bought out of their share of these assets, and to what extent is their value separable from the partnership? Your partnership deed needs to be clear about what happens in this event.
5) Lack of detail over property ownership
An out of date deed may not deal adequately with issues of surgery occupancy, the rights of the property owning partners, or how NHS Premises Funding and property related costs will be shared. This can be just as much a problem for leasehold as it is for freehold surgeries. Clarity is needed to ensure both owning and non-owning partners are appropriately protected and rewarded.
Futher reading: Beware the ‘Last Man Standing’ issue in GP Practices
To help you assess if your partnership deed is in need of an upgrade, we’ve prepared a checklist for you of some of the key issues that an up to date deed should cover. Take a look and if your deed doesn’t cover these points then it’s time to act and seek appropriate legal advice.
News
Burnout: 4 legal issues to consider if one of your GP Partners “Burns Out”
Partner burnout is a growing problem for GPs – up to 50 percent are at high risk due to stress, high demands and funding cuts.
If one of your partners is suffering from stress, careful consideration should be given to these four key issues:
- Disability discrimination;
- Professional conduct, including patient safety;
- Partnership obligations as defined in the partnership agreement; and
- Fulfilling one’s obligations under the core medical services contract.
1. Disability discrimination
If stress results in a partner being unable to carry out their work properly on a long term basis, an Employment Tribunal may decide that the partner is suffering from a disability within the meaning of the Equality Act 2010.
The Equality Act says that dismissing someone or subjecting them to some other detriment because they have a disability, or otherwise failing to make reasonable adjustments to allow that person to remain engaged, gives rise to unlimited liability for disability discrimination.
GPs are usually aware that the Equality Act protects partners as well as employees. They can then bring or threaten disability discrimination claims where they feel that their colleagues have forced their retirement because of stress related illness or are trying to engineer their removal for this reason.
As set out below, appropriate support should be provided to any partner who is suffering from stress. This will prevent their condition becoming a disability and/or limit liability for discrimination, should it become necessary to terminate their engagement.
2. Patient safety
If at any time GPs have concerns that a colleague’s condition affects patient safety, they are obliged to act in accordance with their obligations to safeguard patient and the GMC guidance on Good Medical Practice. This states that you must ask for advice from a colleague (e.g another partner or GP at the LMC), your defence body or the GMC. If you are still concerned you must report the matter in line with GMC guidance.
All practices should have a properly drafted whistleblowing policy to ensure that guidance and laws relating to the disclosure of what is likely to be confidential information is adhered to, with legal advice also being sought in this regard.
It is essential that any report should be carefully documented in case your actions are later alleged to be discriminatory or you are accused of acting in bad faith towards your partner.
Providing there are no concerns about patient care, in the first instance the troubled partner should see their own GP or otherwise seek specialist professional guidance. It would be appropriate for the senior partner colleague who has responsibility for HR issues to address such matters informally (but confidentially) with the individual, keeping themselves appraised as to progress made.
3. Partnership obligations
In situations where the stressed partner does not seek treatment, or their condition continues or worsens, you should consider their rights and obligations as defined in the partnership agreement.
At the outset, when faced with a partner suffering from stress, you should be wary of relying on any provisions in the partnership agreement allowing for compulsory retirement due to absence or a failure to carry out duties. You should first establish whether the partner in question has a disability and what steps might be taken to limit liability in this regard.
An appropriate independent expert (not the partner’s GP) should examine the partner, and provide a report that sets out:
- A diagnosis;
- The condition’s effect on the partner’s ability to carry out their duties;
- A prognosis;
- The steps that might reasonably be taken to assist the partner.
An independent health report may recommend that a partner take periods of rest and then return to work in a phased manner. A failure to allow for this, even if a threshold set out in the partnership deed providing for compulsory retirement after a given period of absence is crossed, or a provision requiring that all duties are carried out is breached, could give rise to a claim under the Equality Act for failing to make reasonable adjustments to allow for the partner to remain engaged
If a medical report provides evidence that supports a retirement on ill-health grounds, the partners may discuss the possibility of voluntary retirement. In situations where this is not agreed and legal advice has been sought to confirm that compulsory retirement would not constitute unlawful discrimination, then the partners would wish to rely on a provision allowing for compulsory retirement after prolonged absence. It is common to allow for compulsory retirement after a period of absence of between 9 and 12 months. Practices with partnership agreements that do not include such clauses will be unable to retire a partner in this situation.
In any event, compulsory retirement may well give rise to a partnership dispute, notwithstanding the provisions of the partnership agreement. A well-drafted partnership deed will include provisions allowing for dispute resolution. Arbitration is often preferred over the courts as it provides confidentiality and can be quite flexible, but if part of the dispute alleges discrimination this will be heard in a public employment tribunal. Disputes where there is no partnership deed allowing for private dispute resolution, however, must be heard in the courts.
4. Medical services contract obligations
An important consideration when a partner is unwell is the implication for the GMS/PMS/APMS contract. If you seek to terminate the relationship by dissolving the partnership, you risk terminating your contract too, so it is critical to follow procedures for retirement (link to retirement checklist post) set out in a valid partnership agreement. In the current environment, dissolution would almost certainly lead to your contract being re-tendered, possibly even the possible closure of the practice. You could also be sued for breach of contract.
If a partner’s condition has given rise to fitness to practise concerns, this could lead to a suspension or erasure from the register. The full consequences of this lie outside the scope of this article but this would prevent a GP from being party to a core medical services contract.
It is critical that this is considered in the partnership agreement. Practices are advised to check that the partnership agreement takes account of the consequences of burnout, as the problem is growing.
As with any legal agreement, it is always advisable to seek the advice of an experienced legal team, who can help with your specific case and personal circumstances.
For more info about this, or any other legal issue relating to your practice, please contact Daphne Robertson on 01483 511555 or d.robertson@drsolicitors.com.
News
GP surgery lease – managing your repair and reinstatement obligations
When you’re negotiating a lease for your GP practice it is important to ensure that you are aware of all the potential costs you may incur throughout your tenure – especially when you could be faced with bills running into many thousands of pounds.
One key area where costs can quickly mount up, and where disputes between tenants and landlords are common, is repairs, maintenance and reinstatement of the premises. This is particularly true if you are signing a full repairing and insuring lease (FRI), which places full responsibility for all such costs on your shoulders, as tenant.
Here we take a closer look at how you can best manage your obligations and minimise any potential for dispute.
- What is a Full Repairing and Insuring lease?
As the name suggests, under this type of lease the full cost of all repairs and insurance will be borne by you as tenant. This is true whatever the repairs may be, whether external, internal or structural. It is also established law that as part of your FRI obligations you must repair the property even if it is in a poor condition at the start of the lease.
If you are the sole occupant of a building on an FRI lease (a ‘lease of whole’), you will normally have full responsibility for the maintenance of the whole property. If you occupy a surgery which forms part of a larger property (a ‘lease of part’) you will be responsible for repairing the interior of the surgery, and will share with the other occupants the cost of repairs to the structure, exterior and common parts of the property through a service charge.
In addition to keeping the property in ‘good repair’ throughout the term, you may have to return the interior and/or the exterior of the building to their original state at the end of the term.
If you are in breach of any of your obligations during the lease, then your landlord may be able to claim damages, including the costs of repairs, loss of rent and any other damages. At worst, your landlord may seek to terminate the lease.
What are repair and reinstatement obligations?
Your responsibilities should be clearly set out in your lease. Typically, they will include:
- A responsibility to keep the premises in good condition throughout the term of the lease, not just at the end of the term (such as maintaining the roof, the heating system, the windows and doors etc)
- An obligation to clean and redecorate at regular intervals through the term and/or at the end of the term
- An obligation to remove and reinstate any alterations you have made
What do you need to be aware of?
The main problem you face with an FRI lease is that irrespective of the cause of the damage, as tenant you will be responsible for funding any repairs to the property – even if the damage was due to negligence on the part of the landlord. One rare exception may be if the landlord has already insured against a certain risk, details of which you should be able to find in the buildings insurance documentation.
A common cause of dispute is interpreting the extent of this repairing obligation. Leases can use phrases such as ‘the Tenant shall keep the Property in good repair and condition’, or ‘in a tenantable condition’. Even the word ‘repair’ can mean different things. This type of terminology is subject to endless legal wrangles between landlords and tenants.
Some lease agreements even include an obligation to rebuild. This carries a far greater potential risk to you as tenant, so is something to avoid, especially when signing a relatively short term lease.
Taking steps to protect yourself
If you are going to enter into an FRI lease then there are steps you can take to better protect yourself:
- Prepare a Schedule of Condition
Enlist the services of a specialist surveyor, who can examine and record the present state of the surgery. Your legal team should be able to help point you in the right direction with an introduction.
The surveyor will put together a ‘Schedule of Condition’ (SoC) for you, which may be written or even better, photographic. This will give you a detailed record of the state of the premises at the beginning of the contract. It may also highlight any important structural concerns or existing damage to the property that you may need to repair. You should then seek to limit the lease obligation to maintaining and reinstating the building to the same state and condition that it is in when you move in.
The SoC should be attached to and form part of the lease before it is entered into. If your landlord doesn’t want to agree to one at first, then persevere, as they will usually accept one eventually. But even if your landlord won’t agree, you should arrange to have one drawn up for your own records, as it could still be a useful piece of evidence when negotiating ‘dilapidations’ at the end of the lease.
- Ensure you understand the extent of the obligations in the lease
The extent of your obligations can turn on a single word or phrase in the lease. Since this is such a controversial (and expensive) area, the meaning of these terms has been clarified over the years through case law. The ‘real’ meaning is often not obvious to laypersons, so you would be well advised to have them explained by a specialist solicitor.
- Understand and negotiate the Service Charges
Ensure you understand what you will be paying for through the Service Charges, and negotiate accordingly. For example, why should you contribute to maintaining the lifts if you are only using rooms on the ground floor?
- Consider holding a sinking fund
As partners approach retirement, they have an incentive to leave the repairing and maintaining obligations for later generations to pay. This can cause some very nasty surprises for incoming partners. Best practice is to allocate an appropriate share of the rent reimbursement to a repairs and maintenance sinking fund.
Also, bear in mind that the less you spend on maintenance and service charges during the course of a lease, the more you may end up paying to reinstate at the end of the lease. This can create problems, especially for joining and retiring partners who will want to understand what the obligations are likely to be – particularly if there aren’t many years left to run.
Conclusion
Due to the huge responsibility and cost that an FRI lease places on tenants, it should always be entered into with caution and only after taking legal advice. Remember that a tenant has obligations for the full term of the lease and not simply whilst a partner in their practice.
And one final word of advice: no matter how good a relationship you may feel you have with your landlord, never rely on good faith or memory. Landlords move on and the landlord in situ when your lease eventually comes to an end may well view things differently to your current landlord.
For more advice on lease negotiation, please contact Daphne Robertson at DR Solicitors:
Tel: 01483 511555,
E-mail: d.robertson@drsolicitors.com
You may like to download our free eBook ‘Top ten tips when agreeing a surgery lease‘.