Legal pitfalls over employment law await primary care trusts. Alison Moore looks at the human resources implications for these large employers

Primary care trusts may be the new kids on the NHS block, but within a year or two they are expected to become the standard model for care delivery across England.

But while they have grown out of primary care groups, PCTs are very different organisations. They are large employers - often bringing together former employees of health authorities and community trusts - but they also have to work closely with local GPs and their staff.

The human resources implications of this are immense and the legal pitfalls daunting. Staff employed by PCTs will have their old terms and conditions of service protected under either a transfer order or the Transfer of Undertakings (Protection of Earnings) Regulations - TUPE. But many PCTs will want to move towards common terms and conditions for all staff.

Existing PCTs have found variations not only in pay for staff doing the same or similar jobs, but also in 'fringe' benefits such as annual leave.

Employment lawyer Liz Adams points out that harmonisation may be more difficult than it appears. 'Staff will transfer with their terms and conditions intact, ' she says. 'So if you have people earning£4 an hour and some people earning£4.10 an hour you can't put everyone on£4 an hour as part of the transfer.

'Even with consent you can't change terms to the detriment of the postholder as part of the transfer.'

However, changes can be made later - although it is difficult to pinpoint when it is safe to move towards harmonisation.

Mrs Adams, a partner at Beachcroft Wansbroughs, says in one recent case it was held that changes made two years later were still prohibited under TUPE.

In practice, many PCTs are likely to duck questions of harmonisation and may wait until the government's Agenda for Change, which sets out a core national framework for pay and conditions, is implemented.

PCTs seeking changes in the meantime will probably have to level up rather than level down. However, they will have to form their own terms and conditions for new recruits and these may be the template for harmonisation.

Another area where PCTs are having to draw together different policies is in disciplinary proceedings. In Nottingham, where PCTs are expected to start in April and draw staff from two trusts and an HA, talks are underway with unions about a standard PCT procedure.

But forming a PCT is not the end of potential legal problems. One of these is ensuring managers on the ground are aware of employment rights and do not break the law through ignorance.

This is true of any organisation, but PCTs are intended as a new type of organisation with varying structures and power may well be devolved to a lower level or to people who have not previously had experience of employment law.

Mrs Adams highlights equal opportunities as an area where PCT managers will need to be on their guard. Not only are employment tribunals expensive, but they lead to bad publicity and may put off potential employees - a real issue when nursing and therapists are in short supply.

'Equal opportunities is where the most difficult claims come, and they are the ones that cause the most disruption, ' she says.

But there have also been far-reaching changes to other employment legislation recently such as whistleblowing and the strengthening of human rights laws.

Managers are also expected to consult with staff about changes to their working lives much more - and many managers say consultation and involvement is the way to bring about change. This may be important to PCTs planning workforce changes.

Karen Bell, chief executive of Huntingdonshire PCG and a former president of the Association of Healthcare Human Resources Managers, says: 'Since becoming a PCG we have said we want to involve staff in all service development.

'With the changes we will want to make if we move to PCT status we will talk with staff and ask how we should do it.

'In terms of being an attractive employer, staff want some influence over service development and the way they work.'

Further, PCTs will have to strike a delicate balance with GPs, who remain influential on their executive bodies.

PCTs have been given the job of providing HR support to general practice but have no powers other than persuasion and control over discretionary funds, such as primary care investment plans. Those PCTs set up with half-hearted GP support may find this an interesting challenge.

GPs have a varied record as employers. PCTs may offer a way for the general standard to be improved - and certainly for those who are bad employers to be persuaded into better practices. However, PCTs' powers are limited in this area and their influence may depend on whether HR staff can be freed to spread the word among practices.

Newham PCG - which is applying for PCT status from April 2001 - took the first steps towards influencing GPs by employing a head of performance and human resources, Iain Patterson, who already provides support to practices. Mr Patterson found many practice staff were not on contracts, for example, and he was starting from a low baseline in terms of good practice. Money - or the threat of losing it - talks, he found.

'We can clearly focus on the risk [GPs] expose themselves to in not following good practice, ' he says.

'There are opinion formers and leaders within general practices in Newham - it is working with them to ensure the message gets across.

'In the end I have gone into practices to mediate - GPs are generally amenable to some sort of mediation.'

Although legal requirements must be in PCT managers' minds, many see softer 'people' issues as the main human resource challenge.

'Culture change' is the standard byword - not only for staff brought in from health authorities and community trusts, but also for GPs and their staff who have less experience of working within a corporate ethos.

So, are PCTs going to be equipped to meet these HR challenges?

October saw the launch of an HR framework that for the first time makes the way NHS employers treat staff a core performance measure. This may make a difference, especially as resources will be linked to targets.

Mrs Adams raises a note of caution: 'I'm continually impressed by how good the HR people in the NHS are.

There's a culture of keeping up-to-date and being wellinformed - I query whether there will be enough of them or whether HR issues will be given a high-enough priority.'

John Adsett, national secretary of AHHRM, fears that HR issues in PCTs could be sidelined. 'We have some concerns - only on anecdotal evidence - that there are some areas where HR issues are not at the forefronts of people's minds. That would be sad.

'I think these are the sorts of issues that come back and bite you on the backside. We have to get it right from day one.'

But from a union perspective the first few months of PCTs have been relatively uneventful. Roy Paterson, chair of the NHS unions PCT project group, says: 'There have been no horror stories as far as staff transfers are concerned but I think most PCTs are bedding themselves in. The difficult issues lie ahead.'

Other options include buying-in HR support from an acute or community trust, or developing a consortium where several PCTs share resources - but, at least, have HR staff specialising in PCT matters.

In Cambridgeshire, several PCTs and other NHS organisations are getting HR input from the Anglia Support Partnership.

As well as a shared director, each PCT has a named contact to deal with queries.

'The main advantage is that they get a whole department that they would not be able to afford individually, ' points out Angela Cunnington, HR manager at the partnership.

Karen Bell, chief executive of Huntingdonshire PCG, says this can allow participants access to specialists concentrating on one area of HR, when they might only be able to afford generalists by themselves.

A slightly different solution is being tried in Nottingham, where the HR department of a community trust will be transferred to one of four PCTs expected to be set up in April and will service all four.

This will enable the HR professionals to specialise in PCT work - and hopefully to extend their work to include advice to local GPs.

Unison official Roy Paterson says PCTs could also band together to negotiate some shared terms and conditions - for example, parental leave.

How 'outside' HR personnel handle some of the trickier aspects of PCTs is a concern.

PCTs will need to be satisfied that an outside organisation can understand their needs and is capable of delivering a sensitive service.

'We feel it is important to have HR on the ground - providing support to managers, practices and staff, ' says Iain Patterson, head of performance and HR at Newham PCG. 'What counts is the ability to respond.'


1 HSC 1999/168. Minimum Requirements to Address Human Resource Issues in PCTs.