Gunny v Great Ormond Street Hospital for Children NHS Foundation Trust & Ors (Excluded employments) (Rev 1)

For Equality Act 2010 section 83(2)(a), the question is whether the individual was employed under a contract personally to do work. A group contract does not itself exclude statutory protection. The tribunal must assess all contractual obligations and the practical relationship.

An unrestricted ability for group members to replace one another, without the putative employer having any say as to which qualified member performs the work, is inconsistent with personal performance. Restrictions arising only from arrangements between the group members are not fetters imposed by the putative employer. The statutory definition does not create a gap merely because, on the facts, a person does not satisfy its requirements.

Dr Gunny, a consultant neuroradiologist, worked with two other consultants in a group which supplied reporting services to HCA International. The group arranged its own rota, divided fees equally, and could substitute members without HCA’s involvement.

After termination of the agreement, Dr Gunny brought claims of sex discrimination, harassment and victimisation. At a preliminary hearing, the Employment Tribunal held that she was not employed by HCA in the extended sense under Equality Act 2010 section 83(2)(a), because she was not under a contract personally to do work.

She appealed, alleging that the Tribunal had treated the group agreement as determinative, erred on personal service, mutuality and subordination, and reached perverse conclusions.

1. Appeal dismissed. The Employment Tribunal asked and answered the correct question under Equality Act 2010 section 83(2)(a): whether Dr Gunny was employed under a contract personally to do work. It did not impose an additional requirement that there be a separate contract with a single individual.

2. The wording and approach applicable to worker status under Employment Rights Act 1996 section 230(3)(b) assist the analysis under section 83(2)(a). A contract entered into by an individual together with others may still create an obligation of personal performance. The decisive inquiry remains a careful assessment of the contractual obligations and the whole relationship.

3. The Tribunal was entitled to find that the 2015 agreement was substantively an agreement between HCA and the consultant group. That finding reflected the parties’ actual arrangements: HCA supplied work to the group, not to any particular consultant; the group set and altered the rota; and the group divided fees irrespective of individual work performed.

4. The right of substitution within the group was unfettered from HCA’s perspective. HCA was concerned only that a group member covered the rota. An obligation owed by a consultant to fellow group members after accepting a slot did not restrict substitution for the relevant statutory purpose. Applying the principles in Pimlico Plumbers, this was inconsistent with a contractual undertaking by Dr Gunny personally to perform the work.

5. The Tribunal also permissibly found no contractual obligation on HCA to provide Dr Gunny with work, and that the circumstances materially differed from Hospital Medical Group Ltd v Westwood. The group agreement was therefore a relevant, but not conclusive, feature. There was no statutory lacuna: a group arrangement may fall within section 83(2)(a) where its members are individually obliged to perform work personally.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld the preliminary ruling that the Claimant was not employed in the extended sense under Equality Act 2010 section 83(2)(a).
• Employment Tribunal, London (Central): Held at a preliminary hearing that neither Dr Gunny nor Dr Chong was an employee of HCA in the extended sense. No citation is stated in the judgment.