GP Pay Transparency Regulations

This guidance is following the recent announcement by NHS England that the  

Strategic Data Collection Service (SDCS) is open to colleagues covered by these Regulations for 2023/24. The earnings threshold has risen to £163k for tax year 2023/24. 

General Practitioners Committee (GPC) England does not support the continued implementation of these Regulations and considers it is a completely inappropriate decision to do so, especially noting these Regulations were written and introduced under the previous Administration. 

We include below an updated copy of the LMCs March 2023 guidance on this issue in the text of this letter as the Regulations have not changed, just the tax year ceiling. 

I write to colleagues to highlight the introduction of the Pay Transparency Regulations within the GP Contract 2023/24, with the data collection now beginning with 2021/22 NHS earnings. 

Colleagues will recall these Regulations being paused, and for a while it did seem as if common sense and fairness might prevail, but a political decision has been made to recommence by imposing these Regulations as part of the 2023/24 GP Conract.  These included within GMS, PMS and APMS Contracts.  Contrary to the original arrangements, no other NHS clinicians are subject to the same arrangements. 

In many cases, it is possible to discern a glimmer of patient benefit or strategic or policy advantage in NHS England’s announcements, in this case there appears to be non; these Regulations will further demoralise the profession, encourage GPs to retire, leave, or reduce their NHS commitments, will damage recruitment, and risk further exacerbating negative attitudes towards General Practitioners by the public, encouraged by elements within the media.  It is a spectacular mistake.   

When continuing this letter colleagues should be aware that the LMC is not a Trades Union.  Only Trades Unions can lawfully declare an Industrial Dispute, and after doing so are legally protected when encouraging anyone to breach their contract in the furtherance of that Dispute.  LMCs cannot benefit from the same legal protection and therefore cannot encourage colleagues to act in a way that breaches their contract.  LMCs are allowed, and in face are encouraged by GPC England and the BMA, to disseminate relevant information and guidance.  The BMA guidance in relation to the Pay Transparency Regulations [The term ‘transparency’ is not being used by the BMA and GPC England, as this is considered a misnomer].

NHS England’s guidance is also available. 

The LMC would encourage practice and locum colleagues to liaise with their accountant when considering whether their earnings fall above the level that is supposed to be declared, for tax year 2021/22 this is £156k, this sum rises to £159k in 2022/23 and £163k in 2023/24. 

The definition of NHS earnings is supposed to be based on the GPs pensionable income, and therefore taxable NHS income, but as examples listed in the BMA link above demonstrate, this is going to create anomalies even amongst GP partners working in the same practice.  This is not an equitable and consistent process, and it does not apply merely to NHS earnings derived from Primary Medical Services Contract [GMS, PMS, or APMS]. 

GPs (and non-medically qualified contractors) within the scope of the Regulations are:

• Single handed contractors.
• Each member of a partnership, where the contractor is a partnership
• Any subcontractor, if an individual or partnership, but not if a company.  This includes locum GPs who are subcontracted directly by the practice. 
• Any subcontracted clinical services provider. 

The Regulations also state that a contractor must include a requirement to disclose NHS earnings in any subcontract for clinical services it enters into; the same requirement is also imposed on those subcontractors.  However, the requirement is to include this in such subcontract, there is no obligation to ascertain that such a declaration has been made or enforce this. 

Individuals employed by the contractor, such as salaried GPs, are no included.  Individuals employed by a subcontractor who are not named in the subcontracting agreement, are also exempt, as are Company Directors unless they are relevant individuals in point 3 or 4 above. 

The GPCs interpretation is that locums who are:  

• Employed by subcontractor third party, and supplied to the practice, and,
• Locums who set up their own limited companies and are paid via these. 

Will not be covered by the Regulations and are therefore exempt.Colleagues will appreciate this is a complex set of Regulations, and the LMC is providing advice based on the BMAs guidance. 

All practices should receive a Contractual Notice of Variation at some point from April 2023, this will include al the Regulatory changes relating to the 2023/24 GP Contract, including these Pay Transparency Regulations.  Commissioners have become more organised in sending out such Notices to practices in recent years, however until practices received such a Notice, the Regulations do not apply.  Normally there is a fourteen-day period within these Notices to confirm agreement: Practices can return the Notice striking out or saying in writing that they do not accept this element of the Variation.  NHS England will not accept this and will resent the Notice of Variation back to the practice; practices can continue this process indefinitely, but NHS England are entitled to enforce Regulations that are amended to comply with legal changes and the GMS/PMS Contract Regulations represent primary legislation passed by the Government.  In the terms of the required declaration, NHS England have created a portal to do so, details of how to access this are in the NHS England link above.  

The information to be declared is: 

• Name
• Job title
• NSH earnings in income bands (£5,000 bands)
• The name of the organisation from which the greatest proportion of these earnings were received together with the number of other organisations from which NHS earnings were received. 

In an individual who is within the scope of the declaration fails to do so, then in terms of contract holders, they could be considered in breach of their contract; this would apply in a partnership basis if one (or more than one) partner did not do so.  Single-handed non-declaring partners would also be in breach.  There is no provision for a declaration to be made to the Commissioners or NHSE England by a person to confirm whether or not they fall into the scope of these Regulations; the current situation is that if you do so, you should declare under the arrangements described by the Regulations and guidance. 

In such situations where a contract breach has occurred commissioners could consider issuing, in the final instance, a Remedial Notice, because the breach is capable of remedy, that is, a pay declaration could be made.  Any commissioner considering issuing a Remedial (or Breach) Notice must discuss this with the LMC.  If a Remedial Notice is not complied with, normally within 28 days although the period can be longer, then a Breach Notice can be issued, as the partnership have failed to remedy the breach, as instructed by the Remedial Notice.  Theoretically, commissioners can terminate a contract if the partnership fails to comply with a Breach Notice although SSLMCs has never seen this occur locally.  It is hard to imagine a commissioner genuinely believing they are acting the public interest by terminating a GMS/PMS/APMS contract on these grounds. 

When considering issuing a Remedial (or Breach) Notice the commissioner must specify what Regulation has been breached.  The BMA advise it is unclear how NHS England will verify the declarable income of those who have declared or those who have not, but such a Notice could only be issued if the commissioners have demonstrable grounds to do so.  The LMC would as a commissioner to evidence this; the BMA advise that NHS Pensions and HMRC data on earnings are usually anonymised before sharing with NHSE/NHSD, but it is impossible to categorically state identifiable data could not be accessed, although it would have to be lawful to have done so.  If the LMC is told such identifiable data has been obtained, it will advise the contractor involved to raise this issue with the BMA or their legal advisor or accountant to see to establish the lawfulness of what has occurred; although I cannot commit the LMC to funding such and enquiry or challenge, I believe the BMA or General Practice Defence Fund (GPDF) would at least consider doing so as the point would be of general interest to the profession. 

I hope this background information is helpful to all colleagues as they consider these Regulatory changes carefully:  Colleagues may also find it useful to consider accountancy advice and other sources of information. 

Dr Julius Parker, Chief Executive Officer