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Changes in general practice have meant practices are increasingly looking to locum agencies to fill staff shortages and maintain delivery of service levels. Using an agency can save a practice considerable time and cost when recruiting clinicians, whether they are looking for short-term cover for periods of holiday or sickness absence, or on a more permanent basis due to recruitment difficulties.

However, we have seen practices run into difficulties when dealing with agencies. Following our recommendations, which are based on recent cases where practices have needed our legal assistance, may help you avoid becoming embroiled in costly disputes.

Always check the terms
Problems often arise when a practice is unaware of an agency’s terms of business. Agencies invariably have their own standard terms of business when introducing or supplying locums to clients.

An agency may not always send its terms of business when discussing an engagement. Even where a practice has not been sent an agency’s terms of business, it could still be deemed to have accepted them if, for instance, the agency has referred to them in emails or other documentation, or it has sent them in the past.

It is important to ensure you have read the terms of business before proceeding with the engagement of a locum.

Be careful of hidden fees
Although terms of business will differ from agency to agency, they commonly charge a fee if a practice directly employs or engages a locum that the agency has introduced or supplied to them.
This is usually described as an ‘introduction fee’ or ‘transfer fee’, and is based on a percentage of the fee or remuneration payable for the engagement. It is intended to protect the agency against practices taking on the locums they introduce and avoiding paying a fee for the work involved on the part of the agency.
Practices have sometimes been caught out by taking on a locum introduced to them, without knowing that they will be liable to pay a fee to the agency.

Other things to look out for include being charged for minimum working time or cancelling bookings, or ability for the agency to replace the locum with a different individual to the one originally supplied.

Regulatory requirements
Aside from the agency’s own terms of business, the introduction or supply of locums by them is usually governed by regulations known as the Conduct of Employment Agencies and Employment Businesses Regulations 2003.

These regulations place requirements on agencies, which include:

• Restrictions on the charging of transfer fees
• Information to be obtained from the practice and the locum, and provided to the other, to ensure the locum is suitable for the practice’s needs
• Taking steps to ensure both the locum and the practice are aware of any legal or other requirements imposed by a relevant professional body

It is no longer a requirement for the agency to provide written terms and conditions to a practice. Practices should satisfy themselves that the candidate will be suitable for their requirements by checking their availability for work and knowledge of its systems.

Practices should also ensure they comply with their own obligations under their NHS core contract, particularly the requirement to ensure that clinicians they employ or engage are suitable to perform the services. Before proceeding with an engagement, you should ensure you have been provided with the necessary documentation, including:

• Evidence of inclusion on the medical performers list and/or registration with a relevant professional body
• Evidence of suitable qualifications, experience and training necessary to perform the services
• Clinical references relating to two recent posts which lasted for three months without a significant break (or, where not possible, an explanation of why and details of alternative referees)

Ensuring you have read an agency’s terms of business and regulatory requirements are met can help you avoid costly disputes. If you are unhappy with the terms being offered by an agency you could seek to negotiate with them or look to other agencies.

If you need advice or assistance relating to locum agencies, BMA Law can help.

Contact us