Community Based Care Health Ltd v Narayan UKEAT/0162/18
Dr Narayan was a GP who provided services to an NHS provider as an individual and then through a service company for around 12 years. She worked shifts that were mainly out of hours on a 12 week rota at a medical practice. She worked 30 to 40 hours per week. She provided her own indemnity insurance and medical bag and could work elsewhere as a locum without permission. She did not have to accept work and the NHS provider was not obliged to provide her with work. She was paid gross and was not entitled to sick pay or holiday pay. She was able to take holidays when she wanted. However, she was personally required to work for the NHS provider; if she was unable to work, she had to hand the shift back and could not send a substitute. The provider stopped offering Dr Narayan work and she claimed unfair dismissal, race and sex discrimination, wrongful dismissal and unpaid holiday pay. The provider argued that she was self-employed.
The Employment Appeal Tribunal (EAT) held that Dr Narayan was a worker rather than an employee or self-employed. There was no mutuality of obligation, she provided her own equipment and she was required to do the work personally. The EAT distinguished another EAT decision a few years ago, where an out of hours GP was held to be self-employed because he marketed his services to a number of providers and there was an effective substitution clause in his contract.
As a worker, Dr Narayan was unable to claim unfair dismissal or wrongful dismissal but she could claim holiday pay and discrimination. There are a number of cases on employment status going through the courts at the moment and this decision illustrates the fact that they are all fact-specific.