A judge has ruled that a locum GP who was working for an out-of-hours provider should have been treated as a worker who was eligible for sick pay and holidays following an appeal from the provider.
In 2017, Dr Reshma Narayan, a locum GP who worked through her not-for-profit company RNJ Medical Services Ltd, claimed she was unfairly dismissed and discriminated againstby out-of-hours company Community Based Care Health Limited, Gateshead, in 2015.
She claimed that Community Based Care Health decided to stop offering her shifts over conflict around her employment status.
Experts said the case highlighted how ‘challenging’ it was for practices and locum GPs to determine whether the GPs should be classed as ‘workers’ and receive the employment rights as a result.
Under the current system, individuals are either employed, self-employed, or have ‘worker’ legal status, which determines whether they have access to employment rights such as sick leave, paid annual leave, protection from discrimination and national minimum wage.
Dr Narayan regularly worked the same shifts and had no obligation to accept work, taking holiday when she wished to, while Community Based Care Health was not obliged to provide any work.
Community Based Care Health argued that Dr Narayan was self-employed and therefore not entitled to receive paid holiday.
However, the judge reviewed 13 different factors – including around equipment, indemnity, who supplied medication and the ability to work for other organisations – and concluded that she should have been classed as a ‘worker’.
National Association of Sessional GPs chair Dr Richard Fieldhouse said: ‘This whole case might cause fright to organisations similar to CBHC who engage self-employed GPs (whether as sole traders or their own limited companies), but rather than be a new finding, it rather reiterates the advice that your legal status is not defined by either the company engaging the locum, nor the locum themselves, but both the way in which the work is carried out, and the terms of the work.’
Carolyn Brown, employment legal partner at audit, tax and consulting firm RSM, said: ‘This case serves as a further reminder of the challenges of establishing self-employment in long term integrated working relationships.
‘This also underlines how challenging each working status determination is and how each determination has to be evaluated on its own facts.’
The Government has promised to introduce new tools to help individuals understand how to determine their status in light of upcoming changes to the off-payroll working rules.
Ms Brown said the awaited Government’s ‘promised status determination tool’, expected to be introduced before April 2020, ‘will provide clarity around employment status for organisations engaging third party contractors’.