In the third of her series on employment law issues, Lawyer Debbie Sadler looks at the legal rules around atypical employment contracts for locum GPs and temporary staff
Legally speaking, an individual's relationship with an organisation can be classed in a number of different ways. The status of this relationship will attract different legal rights and liabilities and will determine the nature of any potential claims an individual could bring.
Contracts for the provision of labour broadly fall into one of three categories: 'self employed'; 'worker'; and 'employee'. Unsurprisingly, self-employed individuals enjoy the least amount of employment law protection. These are individuals who can decide when and if they work, and they will usually have some control over the terms of the contracts that they fulfil.
'Workers' is a hybrid category created by European law. Workers have protection against discriminatory practices and are entitled to paid holidays, for example, but they would not be able to bring claims for unfair dismissal.
‘Employees' are people employed under a contract of employment. They are entitled to the greatest amount of legal protection including the right to claim unfair dismissal.
The actual status of an individual will depend upon multiple factors such as how the individual is paid (e.g. salary versus invoices), how the relationship is governed, who provides the tools to carry out the contract and the amount of risk involved for the individual. Each case needs to be analysed on its own facts and circumstances before a definitive assessment can be made.
This will depend on the type of role the individual is to perform. If the practice needs the individual to perform certain services on a daily basis and not to carry out work for any other organisation, an employment relationship would be best. If, however, the practice only required a specific piece of work to be carried out, or wanted external advice on an ad hoc basis, engaging a self-employed individual may be more appropriate.
Do all employment contracts need to be in writing?
No, but we strongly recommended you record the terms of any agreement in writing. This provides certainty and can provide additional protection for the practice should any dispute arise.
For employees, contracts do not need to be in writing but some information must be provided to the employee within two months of them starting work. This includes information about the identity of the parties, how much salary will be paid and when, whether sick pay is payable and the amount of notice that should be given etc. Failure to provide this information can lead to claims.
Should a locum be classed as an employee?
Generally speaking, no. This is because they can decide whether or not they want to carry out the work.
When should I use a temporary or fixed term contract?
Temporary or fixed term contracts can be offered, for example, to cover for an employee on maternity leave or if there is a specific piece of short term work that needs to be completed.
The expiry of the contract will constitute a 'dismissal' at law; therefore the practice will need to be able to justify the termination if a claim were brought. This would be particularly pertinent if, for example, the fixed term expired and the practice then hired another individual to carry out the same work on a further fixed term contract.
It is recommended that fixed term contracts include break clauses allowing the contract to be terminated early without penalty.
Fixed term employees should be not treated less favourably – for example in relation to the terms and conditions of employment – because of their fixed term status. Fixed term employees may become permanent after four years of continuous service.
Should agency workers be classed as employees?
Generally speaking, agency workers will be considered employees of the employment agency and not employees of the practice. However, care needs to be taken in managing agency workers to ensure that the status quo is maintained.
Regulations will be coming into force in October 2011 which will, amongst other things, entitle them to the same terms and conditions as a comparable worker after three months working at the practice.
Should a part-time employee be employed on a fixed term contract?
Not necessarily. A part time employee is defined as someone who does not work full time. The status refers to the number of hours the employee works rather than the duration of their contract. Part time workers can be employed on fixed term contracts or for indefinite periods.
It is unlawful to treat part time employees less favourably than their full time counter parts in relation to their terms and conditions of employment.
Debbie Sadler is a senior employment solicitor in Blake Lapthorn's Health and Care sector group, debbie.sadler@bllaw.co.uk.
Debbie Sadler is a senior employment solicitor in Blake Lapthorn's Health and Care sector group, debbie.sadler@bllaw.co.uk.
