The claimant was a ‘duty doctor’ and worked regular shifts on a 12-week rota at a single medical practice.  This had been the case for approximately 12 years.  She was not obliged to accept any work offered, nor was the company obliged to provide any work.  She took holidays when she pleased.  She also worked as a locum through another agency.  As a result, she was paid from both roles but through a limited company.   She did not tell Community Based Care Health Ltd about the income going through a limited company, except for the fact she had given the limited company’s bank details for the purposes of payment.

The ET held that as she had worked consistent shifts over a 12 year period but that there was no mutuality of obligation, shown by the fact she did not need permission to work for the other agency, she provided her own equipment and indemnity insurance. This meant that she was a worker rather than being self-employed or an employee.   Accordingly, the ET held that the contract had been with the GP personally despite the payment being through the limited company.

The company appealed this decision, stating that they had unknowingly become a client of the GP's company from October 2015 and that the GP could not be a worker when the limited company was the contracting party.  The EAT held that those undertaking out-of-hours GP work were required to satisfy strict qualification and performance requirements and that it was not possible for a company to meet those requirements.  As a result, the EAT dismissed the argument that there was no worker status due to the payments made to the company.

The second argument from the appellant 'employer' was that the ET erred in applying mutuality of obligation, as found in Suhail v Herts Urgent Care (2013) 130 BMLR 27.   In that case, self-employment of an out-of-hours GP was found but primarily because the claimant advertised their services to many different NHS bodies.  The index case was rightly distinguished as the respondent had worked at the same institution for many years and had not advertised her services elsewhere.  Accordingly, the EAT held that whilst there was not a contract of employment there was a singular contract between the parties rather than a series on a shift-by-shift basis.   As a result, the declaration of the GP as a worker was upheld with the appeal being dismissed.

Practical Lessons:

This case serves to demonstrate the particular nuances that can be found in distinguishing between an employee, self-employed and a worker.   One of the primary issues is that the individual had sought to be paid through a limited company.  This was unbeknownst to the company who continued to pay the individual thinking their contract was only with them as an individual.   This decision demonstrates how the Tribunal will look behind such payment situations to determine the actual relationship that existed between the parties.  Therefore, there was greater weight given to the fact the GP had worked with the one institution over many years.
https://assets.publishing.service.gov.uk/media/5d6d0656ed915d53ab155d13/Community_Based_Care_Health_Ltd_v_Dr_Reshma_Narayan_UKEAT__0162_18_JOJ.pdf