Podcast: David Sinclair on the threat of cyber-attacks on GP Practices and steps to take now
With the threat of cyber-attacks on the rise, coupled with a quickly evolving policy landscape when it comes to GDPR, data protection and information security, our Information Law Solicitor, David Sinclair, discusses with Ockham Healthcare what practices should be doing now to ready themselves, who should take responsibility for this critical area of work, and what to expect going forwards.
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Trusts in Primary Care: Do you need to register with the Trust Registration Service?
Regular readers of our blog will be aware of the Trust Registration Service and the recent requirement to register all ‘express trusts’. DR Solicitors have recently worked with the GPDF to help prepare guidance on the various trust relationships which exist in primary care, and the circumstances under which such trusts may be registerable. The guidance can be found in full on the GPDF website.
The guidance explains:
“A trust is a legal relationship by which one or more ‘Trustees’ hold and manage assets (such as money, investments, land or buildings) on behalf of one or more other people (the ‘Beneficiaries’), and may be created (whether expressly or by operation of law) for convenience or through necessity.
There are a significant number of trust relationships in primary care, generally created by necessity as a substitute for a ‘missing entity’ – particularly in the case of GP partnerships and Primary Care Networks (PCNs). The most common of these trust relationships relate to the ownership of a practice’s surgery, a PCN’s Bank Account, and shares held by GP partnerships in Federations or PCN companies.
Express trusts and taxable non-express trusts must now be registered with the Trust Registration Service (TRS), but the majority of such trusts in primary care settings will be able to benefit from an exemption for “public authorities” and will not need to be registered. In addition, a smaller number of such trusts will be able to benefit from an exemption for “legislative trusts”. It is therefore likely that only a small residual minority of primary care related trusts will need to register with the TRS.”
We recommend that all practices and PCNs read through the guidance to ensure that their particular trusts are likely to be covered by one of the exemptions, and for the minority of trust relationships which are not exempted to seek support from their professional advisers to assist in the registration process.
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PCN sub-contracting: new NHS template and factors to consider
NHS England have recently published a template sub-contract for PCN DES services https://www.england.nhs.uk/publication/subcontract-for-the-provision-of-services-related-to-the-network-contract-directed-enhanced-service-2022-23/
Many PCNs do not seem to realise that when buying in clinical services (as opposed to employing ARRS resources themselves) member practices are creating a sub-contract of their GMS/PMS/APMS contracts. This is true whether the supplier is a GP Federation, a PCN Company or an entirely separate third party.
Most PCNs rely on securing at least some of their resourcing from these providers, and yet many PCNs seem relaxed about documenting this significant relationship through informal SLAs, supplier provided contracts, wording in their PCN Schedules or in some cases, leaving the arrangement completely undocumented. In reality these sub-contracts are critically important in managing the risks for member practices, as a service delivery problem with a sub-contractor can lead directly to a breach of the GMS/PMS/APMS contracts of all the member practices. Having a poorly drafted or non-existent agreement might itself constitute a breach, since practices are required to include a number of important obligations in all sub-contracts to comply with their own contracts.
With the imminent transfer of responsibility for Enhanced Access, many PCNs will be looking to continue this service with the current providers, at least for the time being. This arrangement will also be a sub-contract and it may not be possible to continue the service provision in exactly the same way as before due to regulatory constraints. As a minimum however, a proper sub-contract should be put in place, and for those who have not already done so, the new NHS template PCN sub-contract would probably be a good starting point.
PCNs should bear in mind however that the published document is just a template, and like all templates it needs to be populated and tailored to the particular situation. It also needs to be amended to reflect the different requirements of each party: put bluntly, practices will want to ensure that as many of their risks as possible are passed on the sub-contractor, and the sub-contractor will want to achieve the opposite. It is important that this is taken into account when completing and negotiating the agreement. It is important to remember that, unlike GMS or PMS contracts, PCN sub-contracts are negotiable, need to be negotiated with the supplier, and the template might not suit all circumstances.
Whether or not you use the new template as a starting point, we would strongly recommend that you take specialist advice on all sub-contracting arrangements before entering into them.
For further information on sub-contracting or on any other legal issues, please contact Nils Christiansen on 01483 511555 or email enquiries@drsolicitors.com
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How might the new Trust rules impact primary care?
The Trust Register was introduced in 2017 and at that time, no registration was required for those trusts which did not pay tax. New rules were introduced on 6 October 2020 as part of anti-money laundering and counter terrorism measures, which significantly extended the scope of the register. The deadline for registration is 1 September 2022, however the situation is complex and HMRC have only recently issued guidance on how the new rules will apply.
On the face of it, many practices and PCNs may unfortunately get impacted by the new rules. The underlying problem is that neither partnerships nor PCNs are legal entities which are capable of holding assets in their own name which forces them to hold assets in the names of nominees. In normal circumstances this nominee arrangement would be a ‘trust’ relationship, and therefore potentially subject to the new rules.
The three most obvious examples where trusts are commonly used by primary care medical practices are:
- GP Surgery premises where partners jointly own the freehold or long leasehold building(s):
- Shares held by a GP partnership in a GP Federation or PCN company
- PCN nominated bank accounts where a practice is holding funds on behalf of other PCN member practices
It is important to state that the position is still unclear and there is currently conflicting advice available. DR Solicitors are therefore contributing to the production of some national guidance for primary care, which we hope will be issued soon.
One of the reasons that the issue is receiving a great deal of publicity is that there are financial and criminal penalties for failing to register. However we would direct concerned practices to the website of the Institute of Chartered Accountants in England and Wales which contains some helpful information from HMRC on initial failure to Register or late registration:
In recognition of the fact that the registration requirement is a new and unfamiliar obligation for many trustees, there will be no penalty for a first offence of failure to register or late registration of a trust. The exception is when that failure is shown to be due to deliberate behaviour on the part of the trustees. In that case, or where there are repeated failures, a £5,000 penalty may be charged per offence.
In practice, this means that, should HMRC become aware of a trust which has not been registered by the relevant deadline – either because that trust has been registered late or because HMRC has identified that trust’s existence by other means – HMRC may issue a warning letter to the trustee or agent. It would usually only charge a penalty if that letter were not acted on.
The website contains other relevant information and can be accessed at: https://www.icaew.com/insights/tax-news/2022/aug-2022/hmrc-updates-trs-manual-in-advance-of-1-september-deadline
We will be issuing more guidance on this subject very soon, so please stay subscribed to the blog.
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Should GPs worry about Directors’ Liability?
When we incorporate PCNs or GP practices, one of the most common questions from concerned GPs relates to the liability they might pick up if they become a director of the incorporated company. In this blog, we look at how real the risks are to company directors, and whether or not you need be concerned.
Financial risk
At a very basic level, it is worth remembering that liability is limited in companies but is unlimited in partnerships. So, if a partnership has assets of £60,000 and £100,000 of creditors, then the partners have personal liability for the shortfall. If a company has assets of £60,000 and £100,000 of liabilities, then the directors can liquidate the company, whereupon the £60,000 of assets are sold and the proceeds distributed to the creditors, leaving the creditors short by £40,000. In other words, in a partnership structure the partners lose out if there are insufficient assets, whereas in a company structure the creditors lose out. This is the very essence of limited liability and is why limited companies come with more onerous rules than unlimited partnerships.
In the above scenario, the shareholders of the company will have no liability: if shareholders could be liable for a company’s debts then neither stock exchanges nor pension funds would exist. Directors could theoretically have liability for some or all of the shortfall, but in practice this is extremely unlikely. However, the likelihood of a partner being held liable for the shortfall in a partnership is 100%.
Directors can incur personal liability to creditors in certain circumstances if the company is insolvent, but such liability only arises in situations which go beyond negligence and into the realms of recklessness or crime. One of those circumstances is fraud, which speaks for itself. The other is wrongful trading, which occurs when a company continues to trade when it has “no reasonable prospect” (which wording sets quite a high bar) of avoiding going into insolvent liquidation or insolvent administration. An example of this in a normal trading company might be continuing to take customer orders and customer money when there is no realistic chance of the orders being met because the company is insolvent. Again, the liability which a director would have in such circumstances is no greater than a partner of a partnership would have in identical circumstances, whilst the hurdles which a creditor would have to overcome to enforce a claim against the director would be considerably higher than in enforcing them against a partner.
By moving trading activity from a partnership of which you are a partner to a company of which you are a director, you are invariably reducing your risk of personal liability very significantly.
Breach of fiduciary duties
So what other liabilities might a company director be opening themselves up to? In law, there are seven fiduciary duties set out in statute:
- to act within powers;
- to promote the success of the company;
- to exercise independent judgment;
- to exercise reasonable care, skill and diligence;
- to avoid conflicts of interest;
- not to accept benefits from third parties; and
- to declare any interest in a proposed transaction or arrangement with the company.
To a director who is familiar with these duties in the context of a partnership, these hardly seem onerous and, most significantly, the duties are owed to the company itself, rather than to third parties. It would be the company itself, either through a majority of directors or through minority shareholder action, that would have to sue a director for breach of fiduciary duties. Whilst this is conceivable in a large, listed company, in a small private company which is run and owned by the same people, and in which decisions are made by majority, it is hard to conceive of a situation whereby it might occur.
When it comes to clinical negligence, a company can be liable for the actions of a director, but it is rare for a director to be capable of being held liable for the actions of the company unless the director has themselves done something negligent, in which case the liability arises by virtue of the director’s action rather than by virtue of them being a director. Corporate manslaughter is an exception to this principle, but for a director to be liable in respect of corporate manslaughter it would have to be established that the way in which the activities of the company were managed or organised caused someone’s death and amounted to a gross breach of a relevant duty of care owed to that person. Again, it is hard, if not impossible, to conceive of circumstances where a director of a company had more liability in identical circumstances than a partner of a partnership.
What steps can be taken to reduce the risk to directors?
A question we are often asked related to directors’ liability concerns directors’ and officers’ liability insurance (D&O Insurance). D&O Insurance first started to feature in the public awareness as a result of the various government-commissioned reports into corporate governance in the 1990s: the Cadbury Report, the Greenbury Report and the Hempel Report. These reports led to an increase in the number of non-executive directors being appointed by listed companies. As these non-executive directors usually had very limited supervisory roles, usually concerned with audit and director remuneration, but could potentially incur the same personal liability as ‘ordinary’ directors, they invariably insisted on companies taking out D&O Insurance on their behalf before they would accept appointments – simply by virtue of the enormous numbers involved in such companies. D&O Insurance in respect of a small private company, such as a PCN company or an incorporated GP practice, would be unusual as the directors invariably have a much greater understanding of the operations of a much simpler business. If however you are concerned about this residual directors liability you should speak with a specialist insurance broker about the risks more generally in primary care.
Conclusion
In summary, when you move trading activity from a partnership to a company you invariably end up reducing your potential personal liability. It is no surprise that well over three quarters of all businesses in the UK trade as limited companies, and the majority of the remainder trade as very small sole practitioners. Partnerships have their advantages, but reducing personal liability is not one of them.
If you have any questions on the topics covered in this blog or on any other legal issues, please contact Nils Christiansen on 01483 511555 or email enquiries@drsolicitors.com.
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NHSPS service charges test case judgment – What does it mean for GP practices?
The long running saga of the 5 NHSPS ‘test cases’ regarding service charges has reached a conclusion. The case has been much hyped by all parties, to the extent that it was named as one of the ‘top 20 litigation cases of 2022’ by one excited journalist. Many practices in NHSPS buildings have been waiting for the outcome of the case, in the hope that it would lead to a resolution of their problems with disputed service charges. In the event, the case has proved less useful than many had hoped. The judge has made clear that he does not consider it to be a test case, and that each dispute will turn on its own facts. In essence, the judge concluded that a tenancy is a contract, and that each practice is therefore bound by the particular agreed or implied terms of their occupation. What is perhaps most surprising, is that this outcome should come as a surprise to anyone.
This rather complicated litigation started when the BMA sought to bring an action on behalf of 5 practices who were tenants in various NHSPS properties, asking the Court to confirm that certain standard policies operated by NHSPS to calculate service charges had not been incorporated into the terms of the tenancies. The court refused to make a declaration to this effect, but NHSPS admitted that they could not simply change the terms of a tenancy to include the policies and a ‘victory’ of sorts was declared. This was however short-lived as NHSPS took the opportunity to countersue the 5 practices for arrears of service charges. It is this counterclaim which has now been determined. NHSPS was seeking over £1m in overdue service charges from the 5 ‘test case’ practices and claims that it is, in total, owed over £175m by its GP tenants. It is clear that very significant sums are at stake.
The facts of each of the 5 tenancies are subtly different, which was undoubtedly why they were chosen for the BMA as a ‘test case’. The main thing they have in common is a general lack of documentation and rigour around any of the normal legal processes. As a result the judge had to untangle a complex web of poorly documented issues relating to each building, including: What demise does the practice actually occupy now and in the past? Which partners have been/are tenants and are therefore liable? What are the terms of occupation? What services have been, and should have been, provided by NHSPS? To what extent did payments made represent an ‘all-inclusive rent’? Were service charges capped or in some other way limited by agreement, including by historic agreement with a PCT? Are any of the claims time-barred?
Probably the most important message from the judgement is that as an ordinary landlord, NHSPS has the right to recover a reasonable service charge for the services which it delivers. None of the practices were able to successfully argue that they should be receiving discounted or free services from their landlord, or that their rent was somehow ‘all-inclusive’. That is not to say that other practices cannot succeed with such an argument, but it would require solid evidence that such an agreement existed rather than simply relying on an absence of evidence. In the words of the judgment: “the law, where appropriate, has to step in and fill the gaps in a way which is sensible and reasonable. The law will imply, from what was agreed and all the surrounding circumstances, the terms the parties are to be taken to have intended to apply”.
The judgment did not determine how much of the £1m claimed from the 5 ‘test cases’ was actually recoverable, but it did set out the parameters by which the amount payable should be calculated. It is thus clear that the 5 practices have a significant service charge liability to NHSPS. However the judge went out of his way to make clear this cannot be seen as a precedent for other practices:
“There has been some reference to these five actions as test cases for other disputes over service charges which may arise between the Defendant and other GP practices. While I express the hope that this judgment will assist the Defendant and other GP practices in resolving disputes over services charges without the need for expensive litigation, I would be wary of classifying these five actions as test cases. As this lengthy judgment demonstrates, and as I have already said in this judgment, the resolution of a service charge dispute in any particular case essentially depends upon the evidence and arguments in that case. This is one of the principal reasons why, for reasons which I have endeavoured to explain in making my decision on whether the Charging Policy Declarations should be made, I do not think that it is sensible for any GP practice to adopt what I would describe as a policy of non-engagement; by which I mean refusing to pay service charges pending explanation of the position by the Defendant. As I have said, it seems to me that a more constructive approach would be for GP practices to take their own advice on the position, and to put their particular case to the Defendant on what is and is not recoverable by way of service charges.”
What, therefore, should practices facing NHSPS service charge disputes do now?
1) Don’t ignore the problem as it is very unlikely to just ‘go away’. Having now proven that there is no blanket ‘NHS exemption’ to paying service charges, it would be surprising if NHSPS simply wrote off the £175m it believes it is owed.
2) You should be paying a reasonable amount for the services that you receive from NHSPS, unless you can clearly demonstrate an agreement to pay less. You should accrue accordingly and pay non disputed charges.
3) If you do not agree with a service charge demand, you should challenge it in writing and explain why you believe it is incorrect. For example, why should you pay for a gardener when there is no garden, for a window cleaner who never turns up, or ‘above the going rate’ for a plumber?
4) Gather as much documentation as you can and store it safely. Since any documentation gaps can be filled by the courts, you want to have as much evidence to hand as possible.
5) Make sure your Partnership Deed is clear about what happens when partners join and leave. Your liabilities to the landlord do not automatically cease when retiring from the partnership unless the lease is assigned (which is difficult if the tenancy is undocumented), so retirees will want indemnities from the continuing partners. Likewise incoming partners will want certainty that they will not be liable for charges relating to the period before they joined, and that a suitable retention is in place for disputed charges.
6) Engage with NHSPS to get your situation ‘regularised’. For most practices this will mean that it makes sense to get a lease agreed, but this should be done in tandem with sorting out disputed historic service charges. It is in everyone’s interest to avoid further expensive litigation, so there will be deals to be done.
7) Most importantly, seek specialist advice. When it comes to buildings, no two buildings and (thus no two leases) are the same. If you start negotiating without proper legal advice, you risk giving away important legal rights without securing anything in return. The most likely outcome for all practices now is a negotiated settlement with NHSPS, but this will be very difficult unless you understand the strength of your negotiating position. With so much money at stake, skimping on advice is likely to prove a false economy.
At DR Solicitors we have very deep experience and success acting for GP tenants who are in dispute with their NHSPS landlord. We understand the issues, and the areas where negotiation is likely to prove most fruitful. Our new partnership deed also addresses these NHSPS issues. Please contact Daphne Robertson or Sue Carter on 01483 511555 for a free initial conversation about your NHSPS surgery issues.
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Data Protection Officers – what’s the risk?
Every GP Practice in England and Wales should have a designated Data Protection Officer (‘DPO’) who is key to the practice being able to comply with its UK General Data Protection Regulation 2016 (‘GDPR’) duties. Unfortunately, there is a lack of understanding about the importance of the DPO role, resulting in partners and separately, the DPO, taking on potentially significant regulatory and financial liability. In many practices, the DPO is seen as a secondary function that a partner, practice manager, or relatively junior member of staff can undertake in addition to their normal duties. In this blog, our data and information security solicitor, David Sinclair, identifies some of the key risks and some steps you can take to avoid them.
The role of the DPO
A DPO has significant, statutory data protection responsibilities that require them to possess requisite professional qualities and other abilities (not defined in the legislation), together with an ‘expert knowledge of data protection law and practices’. Given the complexity and ever-changing nature of UK data protection law, this is a significant burden to impose on any professional – even one with considerable information governance experience.
Partner liability
Unless otherwise expressly set out in the partnership agreement, partners are jointly and severally liable for GDPR compliance, including for formally appointing and adequately supporting a competent DPO, and for filing the DPO appointment with the ICO.
Partners bear the full statutory responsibility of ensuring that the DPO (whether a staff member or third party) has the experience, skills and knowledge to fulfil their DPO duties, as well as the required ongoing training, support and resources to enable them to carry out their role.
DPO liability
A DPO carries significant liability if a GDPR breach is attributed in whole or in part to a failure on their part to properly undertake their DPO duties. This is the case even when it can be shown that they perhaps did not have the necessary experience for the role and/or were not provided with adequate training to understand the GDPR’s requirements (many of which are poorly defined and open to interpretation), unless the DPO can demonstrate that they raised these issues with the practice at the earliest opportunity.
A common misconception among DPOs is that they have immunity from prosecution, dismissal, or other disciplinary action by virtue of their status as a DPO. This is not the case.
Article 38 of the GDPR provides DPOs with limited protection from dismissal or other penalty relating purely to the performance of their DPO tasks. In addition, DPOs cannot be personally liable for the partnership’s non-compliance with the GDPR, which remains with the partners.
Data protection law does not, however, protect DPOs who fail to undertake their statutory role or who do so negligently, eg by them failing to advise the partners, or them giving inaccurate advice, particularly where this is due to the DPO’s lack of competence and they failed to raise that with the practice.
Further, the GDPR does not prevent partners disciplining DPO employees (up to and including dismissal) under the terms of their employment contract, or from partners seeking to recover damages (in breach of contract and/or negligence) from external DPOs, whose failure to undertake their role results in a breach of data protection law.
Conclusion
So how can you minimise your liabilities?
Partners should undertake due diligence on a DPO’s competence and suitability to undertake their role. The practice must also provide the DPO with the resources and support they need to carry out their duties. We strongly advise partners to review their DPO appointment on a regular basis.
Existing DPOs and those considering taking on the role should give thought to whether they have the required training, experience, skills and knowledge to undertake the role. Particular consideration should be given to whether they can advise the practice competently and confidently on complex GDPR issues. Individuals who have doubts about their competence in this area should raise this with a partner as a priority.
For more information about GDPR, the role of the DPO or on information governance issues generally, please contact David Sinclair on 01483 511555 or by email to d.sinclair@drsolicitors.com.
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Podcast: Nils Christiansen on the minefield of PCN incorporation
With workload becoming ever more complex and demand continuing to grow for general practice services, many PCNs are looking at incorporation as a solution to running a safe and sustainable structure going forwards. Produced by Ockham Healthcare, Nils Christiansen presents a short podcast offering practical advice on safeguarding and streamlining the PCN as a business entity.
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GP Partnerships: So who do you think you are? Are you a self-employed Partner or are you an Employee?
Most GP practices continue to be organised as partnerships: an ‘independent contractor’ status which has outlived innumerable changes in the NHS. The ‘golden hello’ new to partnership scheme has attracted over 1,300 applicants over the last year, demonstrating that there are still plenty of people who aspire to becoming a partner in a GP practice. However, in an effort to keep up with the fast changing environment and to appeal to a broader range of partner candidates, many GP partnerships are looking at ways of flexing the traditional partner role, to the benefit of all concerned.
In this blog, we look at the 3 main types of partner we regularly encounter in GP practices.
1. Equity Partner (self-employed)
This is the most traditional partner model. Equity Partners are self-employed and have full and equal rights to decision making and are part of a collective management team which is jointly responsible for all aspects of running the practice. Profits and losses are shared equally, although sometimes there is a ‘path to parity’ over a period of a few years. With the rise of part-time working, a common variant is to share the profits and losses on the basis of planned sessions. Equity Partners are expected to contribute capital to the business (as a minimum working capital, but sometimes also property or other capital) which is usually called ‘buying in’. An Equity Partner is jointly and severally responsible for any losses and liabilities that arise in the partnership. This means that creditors can choose to pursue one or all of the partners for the full amount of the partnership debts.
2. Fixed Share Partner (self-employed)
Fixed Share Partners are also self-employed. A Fixed Share Partner typically receives a fixed, guaranteed income for a defined period of time (sometimes during a mutual assessment period) and there should also be an element of variable income based on the profits or losses of the practice. The ‘golden hello’ scheme does not apply to Fixed Share Partners where the fixed share period extends beyond the expiry of any mutual assessment period. Fixed Share Partners still share full liability alongside the Equity Partners so they ought to be suitably indemnified by the Equity Partners in the partnership deed. Fixed Share Partnership arrangements need to be carefully documented to avoid HMRC viewing the tax status of the person as an employee.
3. Salaried Partner (employed)
Salaried Partner and Fixed Share Partner are often (incorrectly) used interchangeably. The key to this person’s status is in the word ‘salary’. Whereas partners take drawings on account of their profit share, Salaried Partners are employees who receive a salary. Salaried Partners should have an employment contract, they benefit from the protection of all relevant employment legislation and they receive a salary with tax and NI deducted at source under PAYE. Salaried Partners may have an element of ‘bonus’ depending on the profitability of the practice and this will be documented in their employment contract. Salaried Partners will not be a party to the partnership deed and they should have no share in the partnership profits and no voting rights. For a Salaried Partner, the word ‘partner’ is just a title and nothing more so they need to be suitably indemnified by the Equity Partners in their employment contract.
A word of warning…
Third parties can bring a claim against anyone who calls themselves a partner, be they an Equity, Fixed Share or Salaried Partner. So behind the scenes, Fixed Share and Salaried Partners are usually protected by way of an indemnity from the Equity Partners. An indemnity is a promise from the Equity Partners to financially compensate the Fixed Share or Salaried Partner in the event of a loss or liability arising. However, the indemnity will not be worth the paper it is written on unless the Equity Partners are good for the money.
Conclusion
If you are a GP practice or a partner or you are thinking about partnership and you want clarification on this blog or any other matter relating to primary care, then it’s time to contact us. Please call us on 01483 511555 or send an email to info@drsolicitors.com
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Protecting yourself & your business: getting ready for VCOD2
At the time of writing this article, the Government looks poised to delay the controversial new legislation known as ‘vaccination as a condition of deployment’ (or ‘VCOD2’) which will make Covid vaccines mandatory for NHS workers in England. The debates for and against the new laws continue to be heard, but even if the mandate is delayed, it will mean those working in the NHS will be facing the same dilemma this summer as they would otherwise face now: comply with the mandate or face dismissal.
As things currently stand, in order for a person to have received two doses of the Covid vaccine by the 31 March 2022, they will have to have had their first dose by 3 February. This is likely to account for the large number of enquiries we have seen pouring in from GP practices, seeking advice on their position.
In this article, we look at what the new law means for Practices and their employees.
What if an employee refuses to be vaccinated?
If VCOD2 goes ahead as planned, then an employee refusing to be vaccinated could face dismissal under the definition of ‘Some Other Substantial Reason’ or ‘SOSR’. An employer intending to rely on SOSR to dismiss an employee is advised to follow a fair procedure, which may include discussing the employee’s concerns about vaccination with them, and taking steps to find alternative work for an affected employee.
Some employers will argue that the obligation to follow a fair procedure is not necessary, because in all likelihood, in light of the mandate and the limited opportunities for re-deployment within GP Practices, doing so is unlikely to make a difference to the outcome. If this argument were to be successful, it could lead to any award for unfair dismissal being substantially reduced.
Redeployment
Many Practices will struggle to find space in their current premises to ensure separation of an affected employee. Potential for redeployment and in particular, selection for alternative work is an aspect of the dismissal process where disputes are likely to arise. If you are an employer dismissing several unvaccinated staff but have identified just one alternative position, you may need to take advice on how you choose which employee to save from dismissal and redeploy.
New policies, pre-employment checks and contracts
If vaccination status is to be a permanent pre-condition to NHS employment, all employers will need to develop policies to reflect the new law. Safe systems to ensure validity of proving vaccination status will need to be put in place and pre-employment checks and checks on locums and contractors will also be essential.
Redundancy
NHS England has made clear that employers must not treat VCOD2 dismissals as redundancies; the consequence being that dismissed staff will not be eligible for any redundancy pay.
Legal claims
The controversy and perceived unfairness by many of VCOD2 dismissals, suggests that dismissed staff are unlikely to go quietly. Class actions may even follow. Although compensation for unfairness will be limited (if awarded at all), we predict claims will be issued and employers will face the unwanted repercussions of this, in terms of time and money spent and reputational impact.
Keeping pace with change
Unlike other preconditions to employment, what constitutes “fully vaccinated” is a moving target. It is unclear how the Government intends to deal with this, save for the fact that Ministers have recently said that the booster is being considered as an additional precondition. How will employers deal with the state of flux in their contractual documentations and policies?
Impact on staffing and recruitment
VCOD2 dismissals will leave significant gaps in staffing across an already stretched NHS. Any dismissals will have a knock-on effect on the remaining workforce with employees being forced to take on additional responsibilities and work longer hours. Further pressure on NHS staff will be seen by most as unreasonably burdensome and the impact on staff retention and recruitment could be dramatic.
Morale and support
How can employers and employees keep buoyant and continue to feel supported at this time? For many, VCOD2 could see long serving members of staff leave NHS service in a matter of weeks, whilst those that remain must continue to provide high levels of care in what is the most demanding and uncertain of environments.
Conclusion
Whilst many questions remain unanswered, our view is that whether the VCOD2 comes into force in two months or later this year, the time for employers to develop workforce strategies to cope with the change and to inform and consult with affected staff is now.
We can advise GP Practices and PCNs on how to engage with staff, the potential redeployment of staff, as well as advising on staff handbooks and Partnership Deeds. Please contact Daphne Robertson for a free initial consultation: d.robertson@drsolicitors.com or telephone 01483 511555.