15 October 2015
Employment status cases ‘particularly fact sensitive’
Cases concerning the exact employment status of an individual are particularly fact sensitive.
In Suhail v Barking, Havering and Redbridge University Hospitals NHS Trust and Another, the Employment Appeal Tribunal (EAT) found that a GP who provided his services to an NHS Trust through a cooperative was neither an employee nor a worker for the purposes of employment law.
Dr Suhail sometimes worked as an out-of-hours GP in Rotherham, where his parents lived, and sometimes provided out-of-hours services in Hertfordshire. In addition, he had also signed a membership agreement with the Partnership of East London Cooperative (PELC), a not-for-profit organisation that assists in finding work for GPs. From time to time, PELC provided Dr Suhail's services to the Urgent Care Centre at Queen's Hospital in East London, which is operated by the Barking, Havering and Redbridge University Hospitals NHS Trust.
He was described in the agreement as a self-employed contractor, rendering invoices that were paid without deduction of Income Tax and National Insurance Contributions. PELC was under no obligation to provide him with work and he was not obliged to accept assignments when offered.
The Employment Tribunal had found that Dr Suhail's employment relationship with PELC or the Trust was neither that of employee nor worker. This decision was upheld on appeal. In deciding whether or not he had the status of worker, the EAT made particular reference to the case of Hospital Medical Group Limited v Westwood, in which Dr Westwood was judged to be a worker even though he had other 'jobs'.
The key finding of fact was that he had agreed to provide his services as a hair restoration surgeon exclusively to Hospital Medical Group. He did not offer that service 'to the world in general' and he was recruited to work for the group as an integral part of its operations.
On the facts of the present case, such exclusivity was 'wholly missing'. Dr Suhail was free to work when he wanted and for whomsoever he chose and could contract with whatever agency offered him the most attractive work. The relationship between him and the organisations he worked for was that of a provider of services to a customer or client.
Employers should ensure that any written documentation that is intended to clarify the exact nature of someone's employment status reflects the reality of the working relationship and the intentions of both parties.