The claimant, a dentist, began working for the respondent in 2010.  The claimant’s contract with the respondent outlined that she had to provide a locum after 14 days of failing to use the respondent’s facilities.   She never did this. The issues arose from 2018 onwards after the claimant went on maternity leave. The respondent announced that it would be closing its practice in which the claimant worked. The others within that practice were redeployed yet the claimant asserted that her contract had been terminated.  

The respondent argued that the claimant was neither an employee nor a worker. This was a successful argument at first instance but this was appealed by the claimant to the EAT. On the issue of worker status, the EAT held that the starting point must always be the statutory wording. The basis is a contract between the worker and the putative employer. It was then from that point that the nature of the agreement could be ascertained and that the contractual working did not go aside from the statutory test. The EAT also held that there was a requirement for mutuality of obligation in line with the decision in Quashie v Stringfellow Restaurants [2012]. The question that needed to be posed was if there was a contract between the claimant and respondent requiring the claimant to personally perform any work or services for the respondent, then was the claimant excluded from being a worker because that work was carried on in their own profession in which the respondent was a client or customer? The EAT further held that it was not sufficient for the respondent to say that the claimant carried on business in a self-employed fashion but rather the exclusion must be shown in this instance. The EAT held that the Tribunal had considered the relevant law but had not given the proper priority or focus to the statutory test.    

In considering the claimant’s position, it was held that the Tribunal had focused too much on the wording of the contract rather than the ‘true nature’ of the agreement. Therefore, it would be wrong to say that the contract was vitiated by lack of mutuality of obligation which arose when she failed to provide a locum. The Tribunal had erred in suggesting that the contract should be given primacy (unless it was a sham). On the point of personal service, the respondent argued that there was an unfettered right of substitution and this negated any worker status. The EAT rejected this on the basis that there was an express requirement that the locum had to be acceptable to the respondent and that there was no absolute right to provide one until the 14 days had elapsed. On this basis, the appeal was allowed with a finding that there was a contract for some personal service between the claimant and respondent. Additionally, there were limits on the right to substitute. However, instead of a full finding of worker status the case was remitted back to the Tribunal as the question of whether the claimant was carrying on a business and the respondent was a customer was not fully explored. 

Practical Lessons

This is yet another case that can be added to the long-list when it comes to employment status. The approach of the EAT here in using the statutory wording as the starting point and then looking at the ‘true nature’ of the contract between the claimant and respondent is one that is to be welcomed as it ought to provide a more structured way in determining status. Interestingly though, the EAT held here that there was a requirement for mutuality of obligation for worker status yet in the recent case of NMC v Somerville (both at EAT and CoA) it was held that there was no such requirement for worker status. This is an area that would be better resolved rather than decisions taking different approaches (although the distinction did not have a great effect in this case).  
https://www.gov.uk/employment-appeal-tribunal-decisions/mrs-n-sejpal-v-rodericks-dental-ltd-2022-eat-91