Avoiding the legal pitfalls
Solicitors Rebecca Pallot and Philippa Doyle look at where GPs who are taking part in the industrial action stand legally
Any employed GP who is a member of a union that has properly authorised action (following a successful ballot of its members), or who is not a member of any union, can lawfully participate in industrial action.
A GP who is a member of a union that has not authorised action but takes it anyway will be acting unlawfully.
If the action is sanctioned by a union (official action), salaried GPs are entitled to certain employment protections. They cannot be dismissed for taking action and any such dismissal would be automatically unfair.
However, even action authorised by the unions is likely to amount to a breach of the contract of employment so legally GP practices do not, therefore, have to pay any member of staff for any day during which they are absent from work – even if they are only absent for part of a day.
Rules for partners
The position is different for self-employed GP partners who cannot rely upon the protection of employment legislation and who therefore have no pre-ordained right to strike.
If a GP partner decides to take action as a matter of principle, there are two key issues to consider within the partnership.
First, the partnership should consider whether it is viable for all the partners to take action, which could leave the business without access to an accountable person. Partners might not all be physically present on site each day and so long as they are not taking action they remain legally accountable.
But if the partners are officially taking action their status changes in this respect in that they are declaring they are not available either to perform their role or to undertake the responsibilities allotted to them.
Second, partners should consider how to resolve the costs of providing cover in circumstances where some partners elect to strike while others continue to work.
Delivering essential services
Inevitably, the absence of several GPs from a practice will cause disruption. The provisions of GMS, PMS and APMS contracts relate to the provision of essential, additional and enhanced services as part of core hours.
That does not mean all GPs need to be present on the premises at all times during core hours, but GPs need to work carefully to ensure that their contractual obligations to the PCT are not compromised if they plan to take action.
Essential services must be provided throughout core hours. In practice, this is arranged through booked surgery sessions, with a GP and/or nurse being on site to deal with emergencies.
In the event that services cannot be delivered, then subcontracting of the services should be organised. This can be as simple as an arrangement with the out-of-hours service of a local practice, provided this is clearly notified to patients. This must as a minimum include information on the telephone answering system and notices within the practice and on the practice door on the day.
As much notice as possible should be given to patients, with no booked appointments being made for that day – in this case, 21 June.
However, whatever arrangements a practice puts in place for GP cover elsewhere, the PCT will be critical of a practice that is completely closed. So, where possible, nurse appointments should still be in place and reception should remain open as normal.
Ideally the practice should look to put a locum in place as a bare minimum. Legislation prevents practices hiring a temporary worker through an agency to perform the duties normally performed by a GP, but that does not stop the practice from bringing an existing employee from another part of the business to carry out the work, or from approaching and employing a temporary worker direct without the use of an agency.
Practices should be aware that the PCT may serve them with a breach notice for failure to deliver the full range of services if GPs are absent and the service suffers as a result (likely to be a notice requiring that the breach is not repeated).
The PCT may also look to withhold monies from the practice in respect of that one day. Each PCT is likely to take a different approach, and its attitude may depend upon whether there are other points of issue between the PCT and practice.
Practices also ought to bear in mind that industrial action, if not handled well, can have an adverse impact on those employees who are not taking part. It would be advisable for practices to hold meetings with all their staff, in advance of action, to consider what temporary measures might be implemented to alleviate problems.
Rebecca Pallot and Philippa Doyle are associates at Hempsons Solicitors