July 27, 2015

GP – Employee or worker?

The Claimant worked as an out of hours GP and also occasionally provided his services, through a cooperative, to the NHS Trust at the urgent care centre at Queens Hospital. The cooperative members’ agreement described him as a self employed contractor who rendered invoices, which were paid gross. There was no obligation on the cooperative to provide him with work, nor for the Claimant to accept assignments when they were offered to him. He provided his services personally and was free to work for any other organisation. He actively marketed himself to whichever locum agency offered the most attractive session of work.

In coming to its decision that Doctor Suhail was neither a worker nor an employee, the EAT looked at the position in Hospital Medical Group Limited v Westwood and contrasted the two situations. In that case, Dr Westwood was a GP and senior partner in a medical practice who had an interest in minor surgery. He also carried out hair restoration procedures for the Hospital Medical Group Limited. He did so exclusively; this was a service he did not offer to the world in general; and he was recruited by the Medical Group to work as an integral part of its operation. He was found to be a worker but not an employee.

On the facts of the current case there was a total absence of exclusivity and Dr Suhail was free to work where, and when, he chose. He was therefore genuinely self employed.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.

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