NHS ASSOCIATE PAY DURING THE CORONAVIRUS PANDEMIC
We note the BDA’s recent advice entitled; “Associate pay in England during pandemic”, which states as follows:
“Legal advice on whether Associates may have a direct claim
We have sought legal advice as to whether associates may have a direct claim against practice owners. The short answer is that associates are unlikely to have a claim directly against practice owners in respect of NHS contract payments. The reasons for this are:
- The agreements between associates and practice owners will be very unlikely to have any provision requiring practices owners to make these payments. When associate contracts were drafted, no one thought that this situation could happen.
- The law is unlikely to imply any term into the associate agreement that would require the practice owner to pass this money on.
- Arguably, the contract between the practice owner and NHS England does oblige the practice owner to pass on the contract payments to the associate in line with NHS England’s guidance. However, the associate is not a party to that contract. It is sometimes possible for people to sue for benefits due to them under a contract to which they are not a party. But, this possibility has been expressly excluded in the standard GDS and PDS contracts.
- Other possible legal avenues were also considered, such as whether a legal trust may have been created for the benefit of the associate. The advice we received was that this was unlikely to have happened.”
Whilst we would agree that an associate cannot make a direct claim against their practice owner in respect of contract payments, the above advice fails to consider the circumstances where associates have been specifically asked or directed by their practices to either undertake remote triaging and/or to volunteer for redeployment following the publication of the CDO’s third preparedness letter of the 25th March 2020.
In our opinion you need to ask the following questions:
- Was the associate asked to telephone triage and/or volunteer for re-deployment with reference to the CDO’s offer in her letter of the 25th March 2020? Whether there has been a reference to the CDO’s letter will be a matter of fact. Associates should consider whether they were referred to the letter or its content when asked to triage/volunteer.
- Did the associate agree to telephone triage and/or volunteer for re-deployment on the basis that they would receive their “previous levels of pay” as per the CDO’s offer? Whilst it would be helpful evidentially if this agreement was in writing, as long as it was agreed, the associate can rely upon it.
- If the answer is yes to both the above questions, this is likely to form a contract variation and the practice will be obliged to pay the associate in line with that variation.
Please note that if the practice owner and associate have agreed some other arrangement for payment during the period of closure, then this will also be a contract variation and the above will be irrelevant.
The BDA’s legal advice set out above, should not be seen as a green light by practice owners to refuse to pay their associates for the services provided during the lockdown period. The majority of practice owners have paid their associates as directed by the CDO as they have recognised their contractual obligation to do so. Further, practice owners must now sign a declaration that they have complied with the terms of the offer to continue making payments. NHS England has confirmed that enforcement action could be taken against practice owners who have lied about what payments they have made.
Julia Furley, Barrister
27th July 2020