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Protecting yourself from locum legal action

Barrister Michael Paulin explains the steps that practices can take to ensure that they are not subject to costly legal action from a disgruntled locum

Locum GPs are often the mainstay for many practices, allowing them to fill a short-term gap in their provision of medical care without taking the step of bringing on board another partner, or securing a salaried GP.

In most cases, locum GPs are themselves only to happy to ‘job' between different practices, earning very substantial revenues, and accept that reduced job security is part of the deal.

However, as reported in Pulse recently, there has been a spate of recent cases where GP employers have found themselves hit with a legal action after terminating a contract with a locum GP – potentially facing legal bills running into five figures.

This kind of legal action can be prevented by carrying out a ‘health check' on your contracts with locums. This article will explain how.

On what basis could a locum launch legal action?

Employees are those who enjoy what is called a ‘mutuality of obligation' between themselves and their employer: in other words, the employer is obliged to provide work, and the employee is obliged to accept it.

This is typically not the case for locum GPs, as they are self employed and can refuse sessions if they wish. Practices may have a locum contract with the locum GP that accepts each party can refuse to provide or accept work, but problems can start to arise if, in reality, the surgery does rely on the locum doctor and, in turn, the locum doctor relies on the surgery for certain fixed sessions.

If this is the case, then a locum doctor may be able to claim they are more an ‘employee' of the surgery as opposed to being self-employed, and can launch costly and time consuming proceedings through an Employment Tribunal.

What the risk of this happening?

This typically occurs when a locum applies for partnership and is rejected, or their contract is terminated with a practice after a long period of time.

Since locum doctors are relatively well remunerated, a claim of unfair dismissal that might follow from the termination of the surgery's contract with the locum can relatively easily reach the current statutory maximum for compensation for unfair dismissal, which is £65,300.

For even if the surgery succeeds in demonstrating that the locum cannot have been an ‘employee', the locum can still argue that he or she was a ‘worker' within the meaning of Section 230 of the Employment Rights Act 1996, namely ‘someone that undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual'.

If the locum GP succeeds in arguing that he or she is a ‘worker' within the meaning of the Act, then the practice could find itself liable for paying holiday pay to the locum doctor.

How can I prevent this?

Practices are able to protect themselves with a clause in their locum GP contract that says although they reasonably expect that specific locum doctor to turn up for the agreed sessions, the locum may also sub-contract the work to another doctor, with the surgery's prior agreement.

If it is well-drafted, then this so-called ‘substitution clause' removes the possibility that the locum was a worker, as it dispels the notion that the locum doctor is personally required to provide the service. It does not have to have ever been invoked to still hold legal force.

In addition to this, ensure that you review your arrangements with locums. Is the expectation that the locum will do a fixed number of sessions each week or month, but is the timing of those sessions left to the locum? Does either party envisage paying or receiving holiday pay?

Ensure there is an understanding that the locum send in a replacement if he or she is not able to attend and that there is provision for this in any contract between the surgery and the locum.

Also look at the arrangements governing the locum's availability outside of his or her normal times of work at the surgery – is this a formal arrangement or is it more casual?

It is important to emphasise that every situation is different, and each surgery will contract with locums in a unique context and subject to unique demands made by either of the parties. Expert advice is therefore a sensible option once the above have been considered.

Michael Paulin is a barrister specialising in employment law. See;

Protecting yourself from locum legal action