Out-of-hours GP providing services through limited company is a worker rather than self-employed

Last month, the Employment Appeal Tribunal (‘EAT’) upheld the ruling that an out-of-hours GP providing medical services to the NHS through a limited company was a worker, not self-employed.

Importance of identifying the correct employment status 

Under UK employment law there are three main categories of employment, an employee, a worker and a self-employed person.  Each category is entitled to different levels of employment rights.

An employee is as an individual who works, or had worked, under an implied or written contract of employment. They have an obligation to receive and do the work provided and are entitled to all statutory employment rights; they are therefore the most protected.

A worker, is someone who is contracted to provide services, however there is little obligation for a worker to receive or do work, such as a casual worker or those on zero hour contracts. Workers have fewer but some statutory employment rights such as to paid holiday and to receive the national minimum wage. They are not protected from unfair dismissal or entitled to redundancy pay.

A self-employed person works for themselves and are responsible for how and when they work. They would ordinarily provide an invoice for their services and are entitled to the fewest employment rights. They are however protected under health and safety legislation and against discrimination.

Community Based Care Health Ltd v Narayan - The Facts

The Claimant provided services to the NHS through the Respondent, Community Based Health Care Ltd and worked regular shifts on a 12-week rota at a single medical practice. She was not obliged to accept work and the Respondent was not obliged to provide any. The Claimant took holiday when she pleased and also did locum work through another agency.

In 2015, the Claimant set up her own company and thereafter received payments from the Respondent into her account. The Respondent was unaware that the details were a company bank account, rather than her personal one. A dispute arose resulting in the Respondent ceasing to offer the Claimant work from February 2017. The Claimant brought claims for unfair dismissal, discrimination, breach of contract and unpaid holiday pay. The Respondent argued that the Claimant was self-employed and therefore could not bring the above claims against them.

The employment tribunal (ET) noted 13 features of the Claimant’s role, leading to the conclusion that she was a worker. These included that fact she did not need permission to work as a locum outside of the Respondent; she had worked regular shifts for 12 years; she was not obliged to accept work and the Respondent was not obliged to provide any; she provided her own indemnity insurance and equipment; and she was required to work personally for the Respondent and could not send someone in her place. Thus all claims, expect for unfair dismissal (as she was not an employee) could proceed.

Outcome

The EAT dismissed the Respondent’s appeal and upheld the ET’s finding that the Claimant was a worker. It distinguished its decision from Suhail v Herts Urgent Care where an out-of-hours GP was held to be self-employed and highlighted that the Respondent in that case had been positively ‘marketing his services’ to medical providers. By contrast, the claimant in this case worked regular shifts over many years for one provider.

The Respondent also appealed on the grounds that they had unknowingly become a client of the Claimant’s company and the Claimant could not have been a worker once the company became a contracting party. The EAT dismissed this and held the company ‘could not possibly’ have been the contracting party because, as an inanimate corporate entity that ‘isn’t a doctor or event human’, it did not meet the Respondent’s requirements regarding the provision of qualified and approved GPs. The relationship was therefore with the Claimant, rather than her company.

Implications for employers

The decision is a reminder that even where there is no contractual relationship with an individual, they can still be classed as a worker and therefore entitled to employment rights. Questions relating to employment status are fact specific and the tribunal will consider how employment relationships work in practice, therefore it is increasingly important to know the arrangements of who is working for you.

The law and practice referred to in this article has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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