Suhail v Herts Urgent Care

An individual who is genuinely in business on his own account is neither an employee nor a worker under section 230 of the Employment Rights Act 1996. The tribunal must identify the parties’ true legal obligations. It must look beyond contractual labels where written terms do not reflect reality, but genuine written terms, including a substitution right, remain effective even if not exercised.

There can be no overarching employment contract where neither party is obliged to offer or accept assignments. In deciding status during individual assignments, relevant matters include mutual obligations, substitution, control and whether the individual markets professional services to clients or customers. For a skilled professional, limited clinical supervision is relevant but not decisive.

The claimant was a registered GP who booked out-of-hours shifts through the respondent’s online system under a service level agreement. The agreement described GPs as self-employed, imposed no obligation to offer or accept work, and permitted a GP unable to work a booked shift to arrange a suitably qualified substitute.

After the respondent stopped offering him shifts, the claimant presented claims including detriment for protected disclosures. At a pre-hearing review, the Employment Tribunal held that he was neither an employee nor a worker. It found no overarching mutual obligations and concluded that he was in business on his own account.

The claimant appealed, contending that the agreement was a sham or failed to reflect the practical relationship, and that he was employed at least during individual shifts.

1. Appeal dismissed. The Employment Judge was entitled to find that the claimant was neither an employee nor a worker for the relevant claims.

2. There was no basis for an overarching contract of employment. The respondent made shifts available to a large pool of GPs, but was not obliged to offer work to any particular GP. The claimant was not obliged to book work. Any mutual obligations arising during a booked shift ended with that shift. There was therefore no contract joining the separate sessions, nor any continuity preserved under section 212(3)(b) of the Employment Rights Act 1996.

3. The tribunal was also entitled to conclude that, even during individual sessions, the claimant was in business on his own account. He marketed his professional services to several medical-service providers, arranged his own tax, National Insurance and insurance, and used his own clinical equipment. That conclusion was fatal to both employee and worker status.

4. [2011] UKSC 41 required an inquiry into the true agreement rather than uncritical acceptance of written labels. On the findings, however, the service level agreement did reflect the parties’ true intentions. Its substitution provision was genuine and effective. The fact that the claimant had not used it did not make it unreal.

5. The respondent’s administrative arrangements and the presence of a shift manager did not establish sufficient control over the claimant’s clinical work. The absence of detailed supervision of a skilled professional was not decisive, but supported the conclusion that he was operating independently. The findings were not perverse.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal’s finding that the claimant was neither an employee nor a worker was upheld.
• Employment Tribunal, Watford: at a pre-hearing review, decision sent to the parties on 27 April 2011, held that the claimant was neither an employee nor a worker for his protected-disclosure detriment and contractual claims.