Community Based Care Health Ltd v Narayan

A party seeking on appeal to deny that it contracted with an individual, by asserting that an undisclosed company was the contracting principal, must have put that agency case plainly before the Employment Tribunal. An appellate court will not ordinarily permit the point to be reformulated on appeal.

Whether a person is a limb (b) worker requires an evaluative assessment of the whole relationship. A decision concerning another doctor does not govern where the material facts differ. Long-standing regular work, an absence of marketing to providers, and substantial organisational control may support worker status. The absence of employee-level mutuality does not itself preclude a worker contract.

The claimant was a GP who had undertaken regular out-of-hours shifts for the appellant NHS service provider for approximately 11 to 12 years. She also performed locum work through an agency. From October 2015, payments for both activities were made to a company which she had formed.

At a preliminary hearing, the Employment Tribunal held that she was a worker within section 230(3)(b) of the Employment Rights Act 1996, but not an employee. It also held that she was in employment for the purposes of the Equality Act 2010. The remaining live consequence was her holiday-pay claim.

The employer appealed, contending that the company was the contracting party, that the Tribunal should have followed Suhail, and that the findings could not establish integration into its business.

1. Appeal dismissed. The Employment Tribunal made no error of law in concluding that the claimant was a limb (b) worker under section 230(3)(b) of the Employment Rights Act 1996.

2. The employer could not advance its undisclosed-principal argument for the first time on appeal. A party alleging that it contracted with someone other than the apparent individual counterparty must identify the alleged principal, agent and basis of agency plainly below. The employer had instead relied on the company only as evidence that the claimant was in business on her own account.

3. In any event, the argument failed on its merits. The terms and circumstances of the arrangement necessarily required performance by a qualified and approved human GP. The company could neither treat patients nor meet the approval requirements. Any substitution right extended only to another suitable, approved GP. Those circumstances excluded an undisclosed corporate principal under the fifth proposition in Siu Yin Kwan, [1994] 2 AC 199.

4. Suhail was distinguishable. The Tribunal had considered it and was entitled to reach a different factual conclusion. Unlike the doctor in that case, the claimant did not market her services to medical-service providers. Her relationship arose from contractual documents and a long course of regular shifts for the appellant. Worker status remained a fact-sensitive overall evaluation.

5. The Tribunal’s finding that there was insufficient mutuality for an employment contract did not establish that there were no contractual obligations outside individual shifts. Its finding of a single continuing contract was open to it. The unresolved extent of obligations between assignments did not disclose an error of law on the issues appealed.

6. The duration and regularity of the work, together with the appellant’s considerable control and the other findings, entitled the Tribunal to find that the claimant was integrated into the appellant’s operations.

• Employment Appeal Tribunal: dismissed the employer’s appeal and upheld the worker-status ruling.
• Employment Tribunal (North Shields): at a preliminary hearing on 22 November 2017, with reserved reasons dated 23 February 2018, held that the claimant was a worker under section 230(3)(b) of the Employment Rights Act 1996, but was not an employee.