In the case of The Hospital Medical Group Limited v Westwood, the Court of Appeal decided that a GP carrying out hair restoration procedures for a private clinic was a “worker” for the purposes of employment legislation.
Dr Colin Westwood, a GP with his own practice, was approached by Hospital Medical Group Ltd (HMG) to undertake hair restoration procedures. HMG engages surgeons with their own practices and none of those surgeons are engaged on contracts of employment.
Upon termination of his engagement, Dr Westwood claimed unlawful deduction from wages and accrued holiday pay on the basis that he was a worker. The Court of Appeal supported the decisions of both the Employment Tribunal and Employment Appeal Tribunal and held that Dr Westwood was a worker under the Employment Rights Act 1996 and therefore was entitled to the benefit of statutory annual leave.
HMG had argued that the definition of worker excludes a person who provides services to a “client or customer” of any profession or business carried on by him.
The Court of Appeal held that it was wrong to regard HMG as Dr Westwood’s “client or customer”. Dr Westwood contracted specifically and exclusively to carry out hair restoration surgery on behalf of HMG and was referred to as “one of our surgeons”. He was an integral part of HMG’s undertaking and providing services even though he was in business on his own account.
This case highlights the fact that those carrying out a business undertaking on the basis of self-employed status may still fall within the definition of worker. Identifying the correct contractual status is key in order to avoid challenges later. A clear understanding of contracting relationships is vital for both providers and commissioners given the variety of contracting relationships which are in existence. Those making appointments to clinical commissioning groups governing bodies need to be particularly alive to these considerations.