Suhail v Barking Havering & Redbridge University Hospitals & Anor

A professional who markets services to potential providers, remains free to accept work from whom and when he chooses, and is not engaged exclusively as an integral part of one organisation’s operation may provide those services as an independent business. The recipient is then a client or customer for the proviso in section 230(3)(b) of the Employment Rights Act 1996, so the individual is not a limb (b) worker.

An Employment Tribunal’s reasoning may sufficiently address an issue by necessary implication. In any event, an omission that could not affect the plainly correct result does not justify remittal. A point expressly abandoned, or implicitly abandoned by failure to advance a positive case below, cannot ordinarily be raised for the first time on appeal.

The claimant, a GP, supplied out-of-hours services to the First Respondent NHS Trust through the Second Respondent cooperative. His members agreement described him as self-employed. There was no obligation to offer or accept work, and he invoiced for assignments.

The Employment Tribunal held that he was neither an employee nor a worker and therefore could not pursue public-interest-disclosure claims. At a preliminary appeal hearing, the employee-status appeal was dismissed, but permission was granted on whether he was a limb (b) worker under section 230(3)(b) of the Employment Rights Act 1996 and whether he could rely on section 43K(1)(a).

The central issues were whether the cooperative was the claimant’s client or customer, and whether the section 43K(1)(a) contention had been abandoned below.

1. Appeal dismissed. The Employment Tribunal was entitled to conclude that the claimant was not a limb (b) worker under section 230(3)(b) of the Employment Rights Act 1996.

2. The client-or-customer question was fairly before the Tribunal. Although its reasons did not expressly set out that analysis, they addressed section 230(3)(b) and relied on the earlier HUC litigation, in which the claimant’s provision of services as an independent business had been decisive. The reasoning was therefore implicit and adequate.

3. On the facts, the client-or-customer proviso applied. Unlike the GP in Hospital Medical Group Ltd v Westwood, the claimant had no exclusive commitment to provide a particular service to one organisation. He was free to work, or not work, where and as often as he chose. The Tribunal’s conclusion that he marketed his services as an independent provider was plainly correct. Even if the reasons had disclosed an error, it could not have affected that result.

4. The proposed implied contract with the Trust was moot. It had not been advanced below and the facts did not disclose a basis on which implication of such a contract was necessary.

5. The claimant had expressly abandoned section 43K(1)(a) against the cooperative. He also advanced no positive case under that provision against the Trust. That failure amounted to an implicit withdrawal. In the absence of exceptional circumstances, an abandoned point could not be revived in the Employment Appeal Tribunal. The Tribunal could not be criticised for failing to decide it.

6. No determination was made under section 83(2)(a) of the Equality Act 2010. The judge’s observations were obiter: any later claim might face issue-estoppel difficulties, and the absence of a relationship of subordination would make it difficult to establish employment under that provision.

• Employment Appeal Tribunal: Appeal dismissed: [2015] UKEAT 0536_13_1106.
• Employment Tribunal: Following a pre-hearing review on 5–6 February 2013, Employment Judge Major held that the claimant was neither an employee nor a worker for the relevant public-interest-disclosure claims. Reasons were promulgated on 6 March 2013.