Out-of-Hours GP Neither a Worker nor an Employee

Posted: 22nd November 2012

An out-of-hours general practitioner (GP) who argued that he was victimised for making a public interest disclosure (PID) has had his compensation claim ruled out by the Employment Appeal Tribunal (EAT) on the basis that he was in business on his own account and was neither a worker nor an employee within the meaning of the Employment Rights Act 1996.

The GP worked for a charity that provided out-of-hours medical services and had 250 medical practitioners on its books who were treated as self-employed by Her Majesty’s Revenue and Customers (HMRC). He argued that he was not permitted to work further shifts for the charity after he made a PID relating to health and safety issues.

In ruling that his role within the charity did not bring him within the definition of worker or employee under the act, the EAT noted that he also worked for other out-of-hours services, took responsibility for his own tax and national insurance matters and had entered into an agreement with the charity which stated unequivocally that he was self-employed.

The GP contended that he had an overarching contract with the charity and was employed during each separate shift he worked. However, the EAT accepted the charity’s arguments that practitioners on its books were under no obligation to work shifts and that it was not obliged to offer work to any particular GP. Concluding that the GP ‘was in business on his own account’, the EAT ruled that the charity had insufficient control over his work and there was insufficient mutuality of obligation to give rise to an employment relationship.