Market Yourself? You May Be Self-Employed…

The Employment Appeal Tribunal in the recent case of Suhail v Barking Havering & Redbridge NHS Trust considered the employment status of a GP. The case raises some interesting issues relevant to determining whether an individual is an employee, worker or genuinely self employed for employment law purposes.

The characteristics of Dr Suhail’s work which led the tribunal to find that he was not an employee or worker was the relationship of ‘client and customer’ between him and his employer, a NHS trust.

A leading case in this field is the Court of Appeal decision of Hospital Medical Group Ltd v Westwood (2013), in which Wilkes represented the employer, Hospital Medical Group. In that case, Dr Westwood was found to be a worker and therefore had rights to claim statutory holiday pay.

The Judge in Suhail referred to the Westwood case and commented that whilst both Dr Westwood and Dr Suhail offered multiple services to multiple providers, Dr Westwood agreed to provide one of his services to one hospital only. That exclusivity and the fact that he did not offer that service “to the world in general”, and the fact that he was recruited to work as an integral part of Hospital Medical Group’s operations, meant that he fell to be classified as a worker for employment law purposes. In Dr Suhail’s case, these factors did not apply.

Pam Sidhu, Head of Wilkes’ Employment Team, comments:

‘Those who enjoy the freedom of working as and when they choose, sometimes for multiple employers, will need to balance this against the diminished protection afforded under the Employment Rights Act 1996. However, findings as to whether one is an employee, worker or self-employed are fact sensitive, and looking at the contract between the parties will only be the starting point. One of the key indicators of genuine self employment appear to be whether and to what extent an individual markets his services to the world in general and if he provides services exclusively to one provider’.

If you would like to discuss any issue or query arising from this update please contact Pam Sidhu or your usual contact in the Employment team. Alternatively email us at [email protected]