As a GP partner, you are both a primary care physician and a business owner. Traditionally, GP partners are self-employed and thus do not qualify for statutory employment protection, such as automatic rights to sick pay, holiday pay, or paid parental leave. However, the assumption that partners do not have any employment rights is not entirely correct. Recent case law has determined that partners may be protected as ‘workers’ under some employment legislation, including whistleblowing and discrimination legislation.
Unfair dismissal
The right to bring a claim for unfair dismissal is available only to employees who have been dismissed and who have the requisite qualifying service. As such, GP partners do not have the right not to be unfairly dismissed.
In order to remove a partner from a partnership, they must either be expelled or exit through a negotiated voluntary departure. The expulsion of a partner is the compulsory exit of one partner at the instigation of the other partners. The grounds and procedure for expulsion should be clearly set out in a partnership agreement.
Although GP partners do not have the right to bring a claim for unfair dismissal, they are protected against expulsion on discriminatory grounds.
Discrimination law
Under the Equality Act 2010 (‘EA 2010’), partners have similar rights to employees, not to be unlawfully discriminated against on the grounds of the nine protected characteristics, namely Age, Disability, Gender Reassignment, Marriage and Civil Partnership, Pregnancy or Maternity, Race, Religion or Belief, Sex and Sexual Orientation.
The EA 2010, sets out various types of discrimination that apply to most of the protected characteristics. These are direct discrimination, indirect discrimination, harassment and victimisation. There are also additional protections against acts of discrimination that are specific to disability, including discrimination arising from disability and failure to make reasonable adjustments.
Partnership agreements which seek to exclude a partner from pursuing discrimination rights in an employment tribunal will be void.
Whistleblowing
The Employment Rights Act 1996 (‘ERA 1996’) provides protection for workers who report certain types of wrongdoing by their employers or a third party, against any form of detriment or dismissal. Reporting a wrongdoing is also known as making a ‘protected disclosure’. The protected disclosure must be made in the public interest. This means it must affect others, for example the general public.
Whistleblowing legislation protects employees and workers. As mentioned above, a partner would typically be self-employed and as such, would fall outside of these definitions, however, recent case law has considered whether partners are workers of the partnership and consequently enjoy greater employment protection than the genuinely self-employed.
A worker is defined under section 230(3) of the ERA 1996 as, ‘an individual who has entered into or who works under a contract… who 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.’
In the case of Clyde & Co LLP & another v Bates van Winklehof [2014], the Supreme Court found that an LLP partner of Clyde & Co was clearly a worker and was therefore entitled to protection in the event of whistleblowing. Although this case addressed the issue in the context of members of an LLP partnership, the court left the issue of whether partners in general partnerships can also be workers unresolved and the legal position remains unclear to date.
This begs the question, can partners of a GP practice be classed as workers?
Under section 43k of the ERA 1996, the usual definition of worker is extended to include a number of individuals who would not normally be covered, in relation to whistleblowing protections. Under the extended definition of worker, self-employed doctors in the NHS are covered. In such cases, the employer is treated as being NHS England or the relevant Local Health Board or Health Board.
Accordingly, if a GP practice is providing services under contracts with the NHS, there is a reasonable basis for arguing that GP partners fall within the extended definition of ‘workers’ and as such, are protected under whistleblowing legislation.
Comment
For GP partners, it is important to recognise that being part of a partnership, does not necessarily mean being without any employment law protection. The distinction between an employee, worker and genuinely self-employed can be complex and the associated legal position will often depend on the circumstances of the partnership.
GP partners should be aware of the protections that may apply to them (and their partners) and should seek appropriate legal advice where necessary to reduce the risk of costly, and reputationally damaging, claims in the Employment Tribunal.
For more information, please contact our expert GP and doctors lawyers.
