The BMA model contract is a topic we recently covered in our blog: ‘What is the BMA model contract and does it apply to me?’.
Many PMS contractors assume the need to provide such a contract does not apply to them. However, the issue isn’t quite so clear cut and this may be leading some practices to inadvertently put themselves at risk.
In this post, we look at the issue in more detail to help clear up any confusion.
Which PMS contractors does the BMA Model contract apply to?
While all GMS contractors must offer the BMA model employment contract - or ‘terms no less favourable’ - PMS contractors are only obliged to if it has been stated in their contract.
In our experience, problems arise when a practice is unaware what is written in its contract. This can lead to salaried GPs being employed on non-BMA model contracts, despite there being a contractual obligation to do so.
Any PMS contractor who has signed the NHS England Standard PMS Agreement 2015/16 will have the obligation, and indeed the majority of PMS contracts we have seen over the last few years include it.
Sometimes practices can accrue the obligation unwittingly. For example, if a practice has signed a new contract following a PMS review they may not realise that the clause has been included and that they should move all their salaried GP staff onto new employment contracts.
What are the implications?
If salaried GP staff believe they are being underpaid, or have the incorrect contractual provisions, then they may seek to take action.
Whilst there is some debate about who can enforce the BMA model contract clause, there is the potential for NHS England to issue a contractual breach notice if they become aware that a PMS contractor is not offering the terms they should.
Most PMS contracts have a clause preventing third parties (such as employees or patients) from enforcing the terms of the PMS contract, however we are aware that some do not. In this case it may be possible for an aggrieved employee to enforce the clause directly, which could lead to a successful claim for historic loss of earnings.
With changes in partnerships, mergers and super-partnerships, where any such liability actually falls would be a complex legal issue to resolve.
If you’re a PMS contractor and you are not sure what your current status is, then start by looking at the most recent version of your contract. Check whether or not it specifies that you have an obligation to offer the BMA model contract.
If it does and you are in breach, then we would recommend you seek advice from a specialist legal team, who will be able to guide you on your options and the best way forward.
For more information, please contact Daphne Robertson on 01483 511555 or email [email protected]