Employment case update | Was an out of hours GP a worker or self-employed?
In Community Based Care Health Ltd v Narayan, a GP was found to be a worker (rather than self-employed) even though she received her income… Read more
In Community Based Care Health Ltd v Narayan, a GP was found to be a worker (rather than self-employed) even though she received her income through a personal services company, wasn’t obliged to accept work and provided her own medical equipment and professional indemnity insurance.
In this case the GP had been providing her services to the same GP practice for around 12 years through a company which provided NHS GP out-of-hours services (Service Provider). She had worked regular shifts and was required to work personally, there was no right of substitution. She originally received payment for her work directly, but for a number of years received it through her personal services company, although she had not told the Service Provider this was the case. She argued that she was a worker and therefore entitled to holiday pay. The Service Provider denied this, arguing: (1) as her ‘fee’ for the work was paid to a personal services company, the personal services company was the contracting party and therefore she could not be a ‘worker’; and (2) the Tribunal had failed to apply the case of Suhail which was very similar on facts and the individual was found to be self-employed.
The EAT did not agree with either of these points. In relation to point (1) the EAT found that the contract didn’t work if the GP’s personal services company was the contracting party, as the contract required strict qualification and performance requirements that could not be met by a company but only by an individual; and in relation to point (2) it was not an error of law to come to different conclusions than those in the Suhail case, on the facts.
Comment: This is particularly relevant for companies caught by the upcoming changes to IR35 and the Off Payroll Working Rules, who will be required to make a status determination about each contractor they engage via a personal services company. It highlights that the contractual documentation needs to reflect the reality of the situation, including whether the individual is providing their services through a PSC or directly and it highlights the importance of keeping arrangements under review.
If you are affected by the upcoming changes to IR35, see how Kemp Little can help you.
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Amy Douthwaite is an employment managing associate
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