Locum’s employment status deemed ‘worker’ after Employment Appeal Tribunal

An Employment Appeal Tribunal (EAT) has ruled that a GP locum, working through their own limited company for an out-of-hours organisation Community Based Care Health CBCH, is in fact classified as a 'worker' in terms of their employment status.

Any person deemed to be a worker is entitled to certain employment rights, including: protection against unlawful deductions from wages, the statutory minimum level of paid holiday and length of rest breaks, protection against unlawful discrimination, ‘whistleblowing’, not be treated less favourably if they work part-time, and may also be entitled to Statutory Sick Pay and Statutory Maternity/Paternity Pay.

The GP locum, Dr Narayan, regularly worked the same shifts, but was not obliged to accept work and CBCH was not obliged to provide any, taking holiday when she wished and stuck to the company’s rules for the allocation of shifts. But after a complaint, CBCH stopped offering shifts, so Dr Narayan made a claim for unfair dismissal, race and sex discrimination, wrongful dismissal and unpaid holiday.

Industrial tribunal

A industrial tribunal took place and ruled in Dr Narayan's favour, and in the subsequent EAT brought by CBCH, Dr Narayan's case was again ruled in her favour. CBCH had argued that Dr Narayan's company was the contracting party, but the judge ruled:

"The company could not possibly meet the respondent’s entry requirements. It is not a doctor. It is not even human. It cannot treat a patient or prescribe a drug or exercise medical judgment. The respondent could not approve it without knowing of its existence. On the judges’ findings the right of “substitutability”, if it existed at all, was to substitute a suitability qualified and approved GP, not an inanimate corporate entity."

CBCH had argued that a similar case (Dr Suhail) had ruled in a different direction, but here the EAT judge ruled:

"It was not an error of law that [the tribunal judge] came to a different conclusion on the facts and on the evidence before him. The key distinction was the finding that the Dr Suhail marketed his services to NHS bodies while this claimant worked regular shifts for the respondent over many years.”

This whole case might cause fright to organisations similar to CBHC who engage self-employed GPs (whether as sole traders or their own limited companies), but rather than be a new finding, it rather reiterates the advice that your legal status is not defined by either the company engaging the locum, nor the locum themselves, but both the way in which the work is carried out, and the terms of the work. In this case, amongst other things, Dr Narayan had worked for CBCH for 12 years; CBCH required her to work personally for it, she could not send a substitute of her choice, and was required to be audited by CBCH to ensure competency and qualifications.

This ruling therefor should have little impact on locums and 'employers' who market themselves to NHS bodies along the lines of a regular self-employed GP locum working in multiple practices, provided they are using a robust set of self terms & Conditions along the lines that come included with NASGP's own LocumDeck.

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