Joint appointments across the NHS and integrated care systems
Along with the emergence of integrated care systems, is the idea of joint appointments to help collaborative working. Charlotte Jones and Michael Wright of Hill Dickinson LLP explain what this means and how employment contracts could work.
The health and care bill 2021 published earlier this year sets out legislative proposals for the reform of the healthcare system. New provisions provide that NHS England (NHSE) ‘may publish guidance for a relevant NHS body about the making of a joint appointment’.
It is expected that from April 2022 (when the legislative proposals are expected to come into force), NHS bodies will be able to make joint appointments with other NHS bodies or local authorities to enable more collaborative decision-making and contribute to the overall aim of a more integrated health and care system.
A range of mechanisms already exist for implementing joint appointments, including secondment arrangements; however, the introduction of the new statutory integrated care systems presents an opportunity for such arrangements to be reviewed.
One possible model for organisations to consider is joint employment. Below we address what that means in practice, when it can be used, and how it can be used effectively in the post April 2022 world of the integrated care system.
What is joint employment?
Joint employment is a situation when two or more legally separate organisations employ an individual at the same time. They are both the legal employer of the employee at the same time.
It is different from a traditional secondment arrangement or embedded staff model in which an organisation agrees to send its employee to work at another organisation, but it remains the employer of the seconded or embedded employee.
When might joint employment be necessary?
If legislation or an organisation’s constitution requires someone to be employed by it to carry out their role/ make decisions, and two organisations want to create a combined role, joint employment may be required.
It may also be appropriate where two or more organisations want to employ an individual to work across the organisations in the same role. This will usually be in a senior post to establish and embed joint working arrangements with partner organisations.
A significant thrust of the health and care bill 2021 will be to encourage and require joint working across organisations. It is likely that joint employment for senior employees may be suggested as a means of achieving that aim.
How joint employment works in practice
Joint employment can be permanent or for a fixed period, with no need for a permanent post for the employee to return to, or for one of the two employers to be a ‘principal’ employer.
Both organisations legally employ the employee and are jointly responsible for the employment relationship.
The employers will need to agree which of their policies and procedures will apply or whether a new set is required to deal with the joint employee or employees. The joint employers will need to agree whether one of the employers will take the lead on behalf of both employers in managing the employee’s employment or whether the employers will share these responsibilities.
Any joint policy would need to make it clear that the employers have agreed to the approach taken and, particularly in relation to disciplinary decisions, the other employer should be, at the very least, consulted before an outcome is awarded.
The joint contract of employment
There are two main options to achieve the joint contract of employment:
- A three-way agreement between joint employers and the employee that completely covers the joint employment relationship
- Separate contracts between the employee and each employer that should specifically state that the employee is employed jointly by the employers for the same employment.
The first option has the benefit of having one written agreement that should cover the entirety of the employment relationships ensuring clarity between the parties.
The second option will require close cooperation between the employers as the separate contracts create the possibility of having inconsistent terms.
HMRC’s rules regarding income tax and National Income Contributions also need to be addressed to ensure that the model used is compliant and the employee is not unfairly disadvantaged by the joint employment arrangements.
VAT
Where one of the employers acts as the payroll on behalf of the joint employers, with a recharge of a percentage of the salary to the other employer, concerns have been raised about the possibility of VAT being payable on the recharge.
To ensure that VAT is not applicable, HMRC has advised that the individual’s contract of employment or letter of appointment must make it clear that they have more than one employer and expressly specify who the employers are.
Joint employment in integrated care systems
The legislative changes set out in the health and care bill 2021 are now just on the horizon, and it is anticipated that joint appointments will be made across partners within integrated care systems. Further guidance from NHSE about the nature of joint appointments is expected. It will be useful if this guidance specifically addresses whether joint appointment refers to joint employment so that organisations are clear on the options available.
Charlotte Jones is legal director at Hill Dickinson LLP and Michael Wright is partner at Hill Dickinson LLP. You can follow them on Twitter @HillDickinson
