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Out of hours GP not a worker or employee

The EAT has recently looked at the difficult question of employment status. In the case of Suhail –v- Barking Havering & Redbridge NHS Trust & Others it found that a GP providing his services to an NHS Trust via a co-operative was neither an employee nor a worker.

An employee has the full range of employment protection rights and, although workers have more limited rights, they are still entitled to paid holiday for example. Decisions such as this can have major implications for many employers.

What happened in this case?

In this case Dr Suhail was a registered GP. He provided his services as an out of hours GP through a number of different organisations but in particular via the Partnership of East London Co-operative, a not for profit social enterprise. That work was carried out at Queen’s Hospital in East London. The agreement he had with the co-operative referred to him as a self-employed contractor and he issued invoices which were paid without deduction for tax or NI. The co-operative did not have to offer him work and he did not have to accept work when it was offered to him.

The EAT found that Dr Suhail was free to provide his services through any number of different organisations including the co-operative. In fact, he provided them through two other organisations against one of which he brought another claim. This meant that there was no exclusivity which was fatal to him being a worker or employee.

This contrasts with another well-known case about employee status also involving a doctor, Westwood –v- Hospital Medical Group (HMG) where a GP provided a wide range of services to different organisations. However in that case, Dr Westwood agreed to provide hair restoration services exclusively to HMG and was integral to their operations. In this case, because Dr Suhail had freedom to work as an out of hours GP when he wanted and for whom he wanted (and did just that), there was no similar exclusivity and the co-operative was his client or customer meaning he could not be a worker or an employee.

Why is it important?

Cases like this are always fact specific but general principles do emerge which are helpful when you have doubts about employee status and this is a useful decision for employers. It shows that clauses preventing individuals from working for anyone else suggest that there is an employment relationship. If you have self-employed contractors working for you, make sure that they are not subject to that type of restriction unless there is a very good reason for it.

If you have any questions about employee status, please Get in Touch

 

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further