The question of employment status is one of the most fundamental issues in employment law. There have been many cases over the years which have considered the question of whether someone is an employee, a worker or self-employed and now the recent decision of the Court of Appeal in The Hospital Medical Group Limited v Westwood can be added to this list.
Dr Westwood was a GP with his own practice. He was approached by the Hospital Medical Group (HMG) in 2005 to undertake surgical hair restoration procedures on its behalf. He was not engaged on a contract of employment, but carried out the procedures under what was purported to be a contract for services, under which he was described as a self-employed independent contractor. The arrangement was terminated in August 2010, at which point he raised an Employment Tribunal claim.
The Employment Tribunal held that Dr Westwood was not an employee of HMG, as there was no mutuality of obligation and no control over the way in which Dr Westwood treated the patients. However, they did hold that he was a worker under s230(3)(b) of the Employment Rights Act 1996. He had clearly been engaged personally, and had no right to delegate his work. Moreover, it could not be reasonably said that HMG was a client or customer of Dr Westwood. These factors were all indicative of the fact that he was a ‘worker’ and the Tribunal therefore had jurisdiction to hear his claims for unlawful deductions and accrued holiday pay.
The Employment Tribunal’s decision was upheld on appeal by both the EAT and, most recently, the Court of Appeal, who felt it was important to highlight the distinction between those who market their services as an independent person, and those who have been recruited to work as an integral part of a larger operation. The decision in this case adds yet another factor to be considered when conducting the ‘multiple factor’ test for assessing employment status and once again highlights the importance of taking a holistic approach to determining the matter.