GP partner attempts to sue health board for holiday pay

A GP partner who attempted to bring an employment case against his local health board over holiday pay has had his case thrown out after a preliminary hearing.

Dr Kevin Connaughton, a GP partner in Glasgow’s East End, sought compensation for leave taken on an unpaid basis and for leave he had accrued but not taken year on year. 

NHS Greater Glasgow and Clyde (NHSGGC) argued in response that Dr Connaughton, as an independent contractor, was not under its employment and therefore had no right to paid annual leave. 

Last month the judge ruled in favour of this argument, and found that the GP partner did not meet the definition of a worker under the Employment Rights Act 1996, the Working Time Regulations 1998 or the EU directive on working time. 

According to the judge, the fact that the GMS contract was between the health board and the partnership, rather than Dr Connaughton personally, was ‘fatal to the claimant’s assertion of worker status under UK law’.

Dr Connaughton was in a partnership agreement with Dr Jolanta Sudomir, working out of Bridgeton Health Centre, from 2012 to 2022.

Having reviewed Scotland’s 2018 GMS contract, the judge concluded that GP practices have freedom to decide how a practice is run, and the health board cannot instruct GPs how to do their job. 

But Dr Connaughton argued that the ‘practical reality is that [NHSGGC] exercises greater control than that’, citing examples throughout Covid where he believed the board instructed GP practices. The judge did not agree with this argument. 

In relation to his leave, the GP partner claimed that when taking leave it is very difficult to arrange locum cover and that he must do so at his own expense.

Of Dr Connaughton’s claim, the judge said: ‘His complaint is that the respondent did not pay him for those periods of leave. He also feels aggrieved that he has to arrange cover and that holiday is “never fully true, guaranteed holiday”.’ 

However, the judge added: ‘On balance, my finding is that although it can sometimes be difficult to obtain locum cover it is certainly not impossible. 

‘I do not accept the claimant’s argument that he is personally obliged to return to the practice if locum cover fails. 

‘The obligation to provide services lies with the partnership, as the contractor under the GMS contract.’

The tribunal also explored the BMA GP Committee’s negotiations for the GMS contract in 2018, which Dr Connaughton argued were not ‘in good faith’.

He claimed that the outcome was a contract that ‘had been structured and presented in a way intended to defeat worker status and the associated employment rights’.

The tribunal had access to more than 7,000 pages of documents about the negotiations, and the judge found that while a salaried model had been considered, both parties based negotiations on the fact that ‘the vast majority of GPs wished to be independent contractors’.

In a summary of Dr Connaughton’s arguments, the tribunal document said: ‘The contract plainly did not reflect the reality of the situation. 

‘The fact that the contract is with the partnership is no bar to worker status, nor does it change the reality of the very onerous personal service which the claimant had to provide. 

‘The relationship was not one of client or customer. The autonomy and ability of GPs to make a profit was highly limited and they had to dedicate the vast majority of their working week and lives to caring for the patients of the Board on their list in highly prescribed circumstances.’

It added: ‘There was a clear imbalance of economic power between GPs and the Health Boards they worked for. GPs required protection from excessive hours and a lack of holiday. GPs were in a hierarchical relationship with the respondent.’

However, the judge ultimately found that there was ‘no direct contractual link’ between the GP partner and the health board. 

He also found that ‘the claimant’s situation was not one of such subordination, dependency or vulnerability that he required the protection of employment rights derived from worker status’.

Earlier this year, the GPC in England took legal advice stating that GPs can take industrial action in response to assumptions that independent contractors cannot do so as they are not employees.

The BMA then confirmed that LMCs can lawfully participate in preparations for potential industrial action, including canvassing opinion and expressing support.