Out of hours locum GP was a worker, not self-employed

A provider of NHS out of hours GP services has lost its appeal against a ruling that one of the GPs it supplied was a worker, and not self-employed. That is a different outcome to the last time the employment status of out of hours GPs was considered by the Employment Appeal Tribunal.

Community Based Care Health Limited, a not-for-profit provider of GP services for what were then Primary Care Trusts, had engaged Dr Reshma Narayan to provide out of hours services as a GP. She was one of 12 out of a total of 80 or so GPs who regularly worked the same shifts for CBCH, and she did so for about 10 years.

Following a complaint about telephone advice, and an issue about her swapping shifts at short notice, CBCH informed her that it would not be using her services again. She responded by bringing a number of claims, including unfair dismissal.

The employment tribunal concluded that Dr Narayan was a non-employee worker, and this decision has now been upheld by the EAT. But why was this outcome so different from the case of Suhail v Herts Urgent Care, when the EAT said the employment tribunal had been right to conclude Dr Suhail had been self-employed?

Although on the face of it Dr Narayan and Dr Suhail were providing exactly the same service, the way in which the arrangements were set up and operated in practice were different. 

For example:

• Dr Suhail had signed a detailed “service level agreement” with the provider, while in Dr Narayan’s case the documents were found to be “sparse”.
• Dr Narayan was able to swap shifts with other GPs approved by the provider without permission, but Dr Suhail had to hand back her shifts if she couldn’t do them.
• Dr Suhail worked as an out of hours GP for a number of other providers, but Dr Narayan for the most part worked the same shifts for a the same provider over an extended period of time.

It’s become a cliché that these employment status cases are very fact specific, but there is no better illustration of that principle than this pair of cases. Often the way the arrangement is set up and operated is more important than the nature of the work performed when it comes to determining status. The lesson for health care providers is to pay attention to the legal arrangements. It seems that in this latest case CBCH has paid a price for failing to do this.