203: Out-of-hours GP providing services through limited company was a worker

In Community Based Care Health Ltd (CBCH) v Narayan, the Employment Appeal Tribunal (the EAT) held that a GP locum who provided her services to an NHS provider through a limited company was a worker, rather than an employee or self-employed.

Dr Narayan was a GP registered with CBCH, a company which provided out-of-hours GP services to the NHS, using GPs from an approved list. She had worked regular shifts of 30-40 hours per week for around 12 years, largely at the same medical practice. From 2014, the NHS introduced a new contract requiring out-of-hours service providers to ensure that their doctors were competent and properly qualified. Following issues with Dr Narayan’s performance, CBCH decided not to offer her any more work. She then brought claims for unfair dismissal, race and sex discrimination, breach of contract and unpaid holiday pay. The Employment Tribunal had to determine whether she was an employee, a worker, or self-employed.

The Employment Tribunal held that Dr Narayan was a worker despite the fact that from October 2015, she was paid through a limited company, without CBCH’s knowledge, and accounted for tax and national insurance through this company. An employment relationship was ruled out, largely due to the absence of the necessary minimum obligation of mutuality. The EAT upheld this finding, noting the following key features of Dr Narayan’s relationship with CBCH:

although she had worked regular shifts, this was mainly as an out-of-hours duty doctor;
there was no mutuality of obligation;
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 and could not send a substitute;
she could take holidays whenever she wanted, with notice;
she was paid gross and did not receive sick pay or holiday pay; an
there were very few documents setting out details of the relationship with CBCH, although she had to comply with a service manual and rules of conduct.

This case may be significant for organisations which provide GP and other healthcare services. The main risk, as here, is that someone who is seemingly self-employed is found to be a worker, and therefore entitled to holiday pay and other workers’ rights. However, as with all employment status cases, the outcome very much depends on the particular facts and circumstances. The EAT distinguished this case from another EAT decision, Suhail v Herts Urgent Care, in which a GP was held to be self-employed. In that case, a service level agreement provided that the GPs were self-employed, and Dr Suhail marketed his services to a number of NHS bodies, whereas Dr Narayan worked regular shifts for one provider over many years.