Karl Marx would not necessarily have approved, but earlier this week the Court of Appeal decided that a self-employed hair restoration surgeon was entitled to worker status under the Employment Rights Act while he was working for a cosmetic surgery clinic. That was despite the fact that he had other business interests, including running his own practice as a GP. In recent months we have had similar decisions involving a partner in a limited liability partnership, a part-time judge and even a lap-dancer. What is going on?
The answer probably lies in the Supreme Court’s decision last year in Autoclenz v Belcher. That was a case involving the employment status of ostensibly self-employed car valets, which placed at least as much emphasis on the reality of the relationship between the parties as on the formal documentation. This latest decision can be seen in that light. Despite that fact that the claimant was self-employed, while he was working for the clinic he was treated as one of their surgeons, and was an integral part of the services it provided.
Although the Court of Appeal stressed they were not laying down a general principle, this is the clearest indication yet that in appropriate cases genuinely self-employed people are still entitled to worker status. Under a standard definition which applies to a wide variety of rights (including the national minimum wage, statutory holidays and the control of unlawful deduction from wages) non-employees are protected if they are working under a contract to perform any work or services personally. That is subject to an exception if the other party is a client or customer of that individual’s business.
The Court of Appeal thought that it was wrong to suggest that the clinic could be treated as the surgeon’s client or customer. To interpret the definition in that way would be tantamount to deciding that the self-employed could never be workers. If that had been the intention, Parliament would have excluded them entirely, rather than providing a more “nuanced exception”.