How should PCNs share their employees and workforce effectively?
Summer 2019 – memorable for heated political debate, spectacular cricket … and the establishment of Primary Care Networks!
With PCN Agreements concluded, members must now turn their attention to the growth of the network workforce. Over the next five years it is estimated that some 22 000 additional staff will become network employees. This year, each network will recruit a clinical pharmacist and social prescriber, shortly followed by a first contact physiotherapist and a physician associate next year.
First step: structure
Unlike the procedure for standard recruitment by individual practices, the introduction of the new network workforce necessitates network members to first decide how to employ network staff.
The BMA have identified five potential operating models for PCNs and each model has different consequences for the structure of the workforce within the network.
At DR Solicitors, we notice a marked preference amongst our clients for the lead provider and the federation model, but it is important to realise that in the same way as a practice can hire staff as partners, employees or locums, a PCN can hire different resources using different models. The resourcing model is therefore a critical factor to consider every time a resourcing decision is made.
Factors to consider when deciding on structure include control, tax, cost, liability operating model and resource availability. There is no one size fits all answer, and what works best may well change over time. The key is therefore adopting a model which is flexible and suits your local circumstances.
Second step: Document the sharing agreement
When agreement has been reached as to the employment structure, the sharing arrangement must be documented. In cases where the individual is employed by a PCN member acting as a lead provider, a Workforce Sharing Agreement (‘WSA’) will be required.
This Agreement sets out employer and employee responsibilities and importantly, makes clear cost sharing arrangements for the shared employee. The agreed framework for managing the shared employee should be set out in detail, including procedures to deal with absence, confidentiality, recruitment, termination, changes to Ts&Cs and more.
The WSA cannot be generic as specific details will depend on the resource being shared. For example, it should state whether the particular shared resource will need to be back-filled or not.
If the new resource is being provided from a third party like a Federation or Trust, a Sub- Contract will be a more appropriate document. This is because the primary responsibility lies with the Core Network Practices through their DES, and they will want to ensure that the same obligations are passed through to the Federation or Trust. This requires a different set of decisions. For example, in a WSA the main purpose will be to ensure that all costs and liabilities are shared, whereas in a sub-contract practices will need to decide whether to pass the risk of cost over-runs and employment claims onto the sub-contractor. Just because the PCN receives a certain amount of funding for a particular role does not mean that this is what they have to contract to spend.
Do I need any other agreements, in addition to the WSA or Sub-Contract?
The network employee will not be party to the WSA or Sub-Contract and therefore it will be necessary to have a contract of employment between the employer and the individual. There are no mandatory contractual terms for staff employed under the PCN DES, but there are nonetheless important considerations, such as the levels of reimbursement available and the newly identified responsibilities for each role.
Mobility for the employee within the network is essential and we recommend that a Licence to Attend is signed, permitting the employee to carry out work at PCN locations other than the premises of their direct employer.
Remember that a PCN is a wholly contractual arrangement. Since PCNs do not exist as a legal entity, there is no body of law to fall back on and this means that all arrangements within a PCN must be documented particularly carefully. Workforce sharing arrangements are no exception to this.
If one or more of the Core Network Practices are going to employ the shared resources we recommend that a WSA is concluded before terms and conditions of employment are agreed with each new network employee. Until the WSA has been agreed, you risk that some or all of the risks and costs of employment will remain with the employing practice.
If you have decided to sub-contract the resources to a different entity like a Trust or Federation, we recommend that you agree a Sub-Contract before any of the new resources start work in the PCN. This is the time when you will have most negotiating power, and will ensure that all parties are clear about who is picking up which costs and risks. An appropriate sub-contract also happens to be one of several rules regarding sub-contracting which are set out in your GMS Contract.
The area is very complex so as ever it is a good idea to take specialist advice. At DR Solicitors we have supported well over 100 PCNs so are experts in this field. For advice on Workforce Sharing Agreements, Sub-Contracts or PCNs generally, contact Karen Black or Daphne Robertson on 01483 511555 firstname.lastname@example.org.