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Out-of-hours GPs are being ‘deprived’ of employment rights, says BMA

Out-of-hours GPs are being ‘deprived’ of employment rights, says BMA

The BMA is supporting several out-of-hours GPs across Wales who are being ‘deprived’ of employment rights such as holiday pay.

A number of OOH GPs have successfully recouped costs for holiday pay with the BMA’s support, the union told Pulse.

GPs working in OOH services, which are in most cases run by Wales’ seven health boards, are currently treated as self-employed for tax and legal purposes.

But a number of GPs have challenged this status over recent years, claiming they should be classified as a worker or employee and therefore be entitled to holiday pay and other rights.

BMA Wales confirmed that it has ‘supported several GPs with claims against their employer for not upholding certain employment rights for out-of-hours work’.

In guidance from October last year, the union revealed that Cardiff and the Vale University Health Board (CAVUHB) had notified all of its OOH GPs that they would be moved over to a new contract which they must sign before the start of November or shifts would not be offered. 

One GP who was affected by this, and who wishes to remain anonymous, told Pulse that Cardiff terminated everybody’s contract and asked them to sign a new one with new clauses in it. 

‘They’ve essentially re-employed people on more or less the same contract terms. They’ve put two new clauses in the new contract, one of which is “if you make a claim against us, you’re indemnifying us against any claims, i.e. if you bring a claim against us, we’ll put costs against you”,’ the GP said. 

‘I believe that by doing this, it will be an attempt to limit financial liability and contract out of basic employment rights such as holiday entitlement.’

The same GP said there are other OOH services that have been ‘terminating contracts’ and that this is ‘happening across Wales’. 

They also have a live claim against Cwm Taf Morgannwg University Health Board arguing for ‘worker status, like a doctor on the bank, or employee status’. 

The anonymous GP told Pulse: ‘The reason why I’m claiming this is that: I need to perform the services personally; I’ve got no right to substitution; I’m paid via payroll; I have all my deductions made at source; all my earnings are pensionable.

‘So I’m saying to them “what you’ve written down on paper isn’t in practice how I’m engaged with you”. And if that is the case, then I’m owed holiday pay relevant to that finding in law.’

In the latest sessional GP committee newsletter, sent out last Friday, the BMA urged OOH GPs to get in contact if they are concerned about employment status.

An example was given in which three OOH GPs ‘recouped’ a ‘significant sum of holiday pay’ via a collective case at an employment tribunal.

However, the BMA has since confirmed to Pulse that this was a hypothetical example and should not have been stated as fact.

The union said that due to ‘confidentiality considerations’, it cannot reveal full details of the successful cases in which OOH GPs have claimed back holiday pay.

BMA guidance over recent years has acknowledged this is not an ‘isolated issue’, but encouraged OOH GPs to contact the BMA individually so that circumstances can be assessed on a case-by-case basis. 

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In 2022, the union advised: ‘It has been identified from those who have contacted us that OOH GPs who are being treated as self-employed for tax and employment legal purposes are being deprived of key statutory employment rights.’

‘The continuation of this issue could impact upon the operation of OOH services across Wales, in that it becomes a less attractive working option for members,’ the guidance added.

In October last year, the BMA said it had been made aware of a recent communication from Cardiff and Vale which ‘purports to move colleagues on to the new “All-Wales” consultancy agreement’ for GMS providers. 

The update continued: ‘Following urgent discussions between the BMA Cymru Wales and CAVUHB, we have obtained clarification that the reference to the All-Wales agreement should not have been made. 

‘We have also received assurances that, whilst colleagues will need to have a signed agreement, they can remain on the existing consultancy agreement, if they so choose, pending ongoing All-Wales discussions which the BMA Cymru Wales have asked to be involved in.’

CAVUHB confirmed to Pulse it had been ‘in contact’ with the BMA over ‘communications issued regarding GP contracts in October 2023’. 

A spokesperson added: ‘As discussions are currently ongoing, it would not be appropriate for the Health Board to comment any further at this stage until we have reached a conclusion.’

According to the BMA, the issue around employment status stems from IR35 anti-tax avoidance measures brought in over 20 years ago, which apply to people who are self-employed via an ‘intermediary’.

In 2017, public sector bodies, including health boards who run OOH services, became responsible for determining employment status.

The BMA became aware in 2021 that several Welsh health boards ‘may have adopted a “blanket application” of IR35 status’ for OOH GPs and doctors working in managed practices, whether an intermediary company was involved or not. 

When asked about the GPs who have lodged claims, the BMA told Pulse it had been ‘engaging with health boards on OOH GPs employment status’. 

A spokesperson said: ‘GPCW is working on issuing further guidance in the coming weeks. BMA Cymru Wales has also raised this at a national level and expect to be involved in ongoing Wales discussions about OOH GPs and employment status.

‘As this is a complex area of employment law, each case must be considered on the basis of various individual circumstances and so we would advise members to promptly contact the BMA’s member relations team by emailing support@bma.org.uk.’ 

A Cwm Taf Morgannwg (CTM) health board spokesperson said: ‘We highly value our GP and wider Primary Care workforce in CTM. As a health board we continue to contribute to the national and local discussions underway.’

In the 2022 ‘mini budget’, the Government announced that reforms to IR35 will be reversed, meaning workers providing services via an intermediary would once again be responsible for determining their employment status.

Pulse had previously reported that OOH services were asking locum GPs to provide proof that they are self-employed amid ‘confusion’ over IR35 rules.

Some had been charged admin fees, such as for invoices, while others had been asked for business cards to demonstrate they are a business.

Last year, a GP partner who attempted to bring an employment case against his local health board over holiday pay had his case thrown out after a preliminary hearing.

Correction: This article was updated on 12 April to remove references to three OOH GPs who had recouped holiday pay via an employment tribunal. The BMA confirmed that this was a factual error sent out in its UK sessional GP newsletter.