In the recent case of Suhail -v- Herts Urgent Care, the Employment Appeal Tribunal were asked to consider the employment status of a GP providing services to an out-of-hours provider under a Service Level Agreement which stated that he was self-employed.
The Facts
His status became important because he had “blown the whistle” on the way that drivers working with the respondent were using mobile phones and satellite navigation systems whilst driving. He had also criticised the drivers directly. The drivers complained to the respondent as a result of which the respondent told the claimant that he would not be offered any more shifts. The claimant argued that he had been treated unfavourably as a result of raising the whistleblowing concerns but that claim could only succeed if the claimant could show that he was an employee or a worker but not if he was self-employed.
The Decision
The claimant argued that the Service Level Agreement was a sham. However the facts showed that the claimant worked not only for the respondent but also two other organisations providing GP services. He paid his own tax and National Insurance, provided his own medical bag and the agreement provided that he could find a substitute if he could not cover a shift that was offered to him.
The Employment Tribunal had determined that the claimant was not an employee or a worker but the claimant appealed to the Employment Appeal Tribunal (“EAT”).
The Appeal
The EAT reviewed the Employment Tribunal’s decision. It took the view the substitution clause was clearly intended to have effect. There was insufficient control of the claimant’s work by the respondent. The EAT refused to overturn the finding by the Employment Tribunal that the claimant was in business on his own account and that this was fatal to the suggestion that he was either an employee or a worker. The claimant was clearly marketing his services to whichever provider of medical services might wish to provide him with work of which the respondent was only one.
Summary
In that case it was a whistle blowing claim which failed but the decision carried with it all the consequences of the GP being self-employed. For example, he could not have brought a claim for unfair dismissal. However, it is dangerous to assume that all GPs working for an out-of-hours provider would be regarded as being self-employed as the outcome of these cases is often very dependent on each particular set of facts.