Where an individual provides services personally over a long period of time, there is a real risk that they will be held to be a worker, and therefore entitled to paid annual leave and the national minimum wage.
This was illustrated in the recent case below.
Community Based Care Health Ltd v Narayan
Dr Narayan was signed up with Community Based Care Health (CBCH) as a duty doctor. She worked regular shifts on a 12-week rota at a single medical practice. There was very little in writing to record the nature of relationship with CBCH and nothing to record her employment status.
Dr Narayan was not obliged to accept work and she took holidays when she pleased. The NHS standard contract for out-of-hours service providers required providers to ensure that the doctors discharging the services were competent and properly qualified. CBCH therefore had to audit the services provided by the GPs on its books and Dr Narayan could not send a substitute to carryout work she had agreed to do. Dr Narayan also did locum work through a separate agency.
From October 2015, she received income from both roles through a limited company. She did not inform CBCH about the company, although she supplied the company's bank account details for payment purposes. In February 2017, issues arose which resulted in CBCH ceasing to offer Dr Narayan work. She made various claims including unfair dismissal and unpaid holiday pay.
The employment judge held that Dr Narayan was a worker despite the fact that from October 2015 she was paid through a limited company. The judge noted the main features of Dr Narayan's role, including that:
- she had worked regular shifts for around 12 years
- she did not need permission to perform work outside CBCH's activities
- she provided her own medical equipment and indemnity insurance
- she was required to work personally for the provider and could not send a substitute of her choice
The EAT upheld the judge's finding, distinguishing another EAT decision, Suhail v Herts Urgent Care. The critical difference was that Dr Suhail had been found to be positively marketing his services to providers of medical services. By contrast, Dr Narayan worked regular shifts for one provider over many years.
What Does This Mean for Employers?
Questions of employment status are necessarily very fact specific and an employment tribunal will have regard to how services are provided in practice, as well as anything agreed by the parties.
There have been a lot of reported cases about worker status in the gig economy. Given the increasing flexibility in the way medical services are provided, we expect cases like that of Dr Narayen to become more common.