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Was GP an employee?

Dr Suhail provided his services to the NHS through a Co-operative whilst also practising as an out-of-hours GP. The terms of his Co-operative Membership Agreement described him as a self-employed contractor - the Co-operative were under no obligation to offer work and he was free to accept or decline any work offered. As a self-employed contractor, Dr Suhail paid his own tax and national insurance contributions. He worked for other organisations mostly on a locum basis and provided assistance to the Co-operative on a personal basis.

Dr Suhail brought claims against both Barking Havering & Redbridge NHS Trust and Partnership of East London Co-operative for unfair dismissal, automatically unfair dismissal, detriment following the making of protected disclosures, race discrimination and victimisation. A Tribunal was required to decide whether Dr Suhail was an employee and/or a worker under s.230 of the Employment Rights Act 1996 entitling his claims to proceed. The Employment Tribunal held that Dr Suhail was neither a worker nor an employee; his claims could therefore not proceed.

Dr Suhil appealed, however the Employment Appeal Tribunal agreed with the Employment Tribunal’s decision. It contrasted the case of Hospital Medical Group Ltd v Westwood in which Dr Westwood carried out hair restoration for a hospital group alongside being a GP and senior partner in a medical centre. He was found to be a worker but not an employee because, despite his other roles, he offered his services exclusively to the hospital and was an integral part of its function. The service provided by Dr Westwood was not offered to other organisations.

In this particular scenario Dr Suhail could choose to accept or decline work as he saw fit – there was no exclusivity. This is just one example of why determining employment status using the tests of personal service, mutuality of obligation and control is important. Employment or worker status is crucial as it determines an employee/worker’s rights in respect of employment issues and their ability to bring claims against another party (commonly an employer).

If you would like to discuss employing or engaging someone’s services and ensuring that you understand the different relationships then and your obligations, please do not hesitate to call or contact us today!

Posted in: Employment

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