Community Based Care Health Limited v Narayan

A tribunal may refuse to entertain a new contractual case on appeal where it was not plainly advanced below and would have altered the focus of the evidence and advocacy. In any event, an undisclosed corporate principal cannot displace a personal-services relationship where the contract and surrounding circumstances require performance by a suitably qualified and approved individual.

Whether a person is a limb (b) worker is a fact-sensitive evaluative question. The tribunal must assess the accumulated detail of the working relationship. A prior decision concerning another doctor does not compel the same result where the material factual context differs, including regular long-term work and the absence of marketing of services to providers.

The claimant was a GP who had worked regular out-of-hours shifts for the appellant NHS-services provider for about 11 to 12 years. From October 2015 she received payments through her own company. The Employment Tribunal held that she was a worker within section 230(3)(b) of the Employment Rights Act 1996, and in employment for the purposes of section 83(2) of the Equality Act 2010, but not an employee.

The company appealed the worker finding. It contended that the claimant's company was an undisclosed principal and contracting party, that the case was governed by Suhail, and that the Tribunal had wrongly found integration into its organisation. The live practical issue was unpaid holiday pay.

1. Appeal dismissed. The Employment Tribunal's conclusion that the claimant was a limb (b) worker disclosed no error of law and was open to it on the facts.

2. The appellant could not raise, for the first time on appeal, a case that the claimant's company was an undisclosed principal and therefore the contracting party. That case had not been distinctly advanced below as one of agency or of the construction of section 230(3)(b) of the Employment Rights Act 1996. It would have changed the factual and forensic focus of the hearing.

3. In any event, that ground lacked merit. The relationship required personal provision of clinical services by a qualified and approved GP. A corporate entity could not meet those entry and performance requirements, treat patients, prescribe drugs or exercise medical judgment. The terms and circumstances therefore impliedly excluded any right of the company to intervene as undisclosed principal.

4. Suhail v Herts Urgent Care did not dictate the outcome. Although the Tribunal could more clearly have identified the factual differences, it had considered that authority and permissibly reached a different conclusion. The claimant worked regular shifts for the appellant over many years under arrangements evidenced by documents and a long course of dealing. Unlike the doctor in Suhail, she was not found to be marketing her services to providers.

5. The Tribunal was entitled to evaluate the totality of the arrangements, including the regularity and duration of the work and the appellant's control over its performance. Its finding of integration was a factual conclusion supported by the evidence.

6. The Tribunal had not determined whether contractual obligations subsisted between shifts or only during individual assignments. Neither party had sought a ruling on that issue. The judge was entitled to defer it, though it would have been preferable to require the parties' positions to be clarified and determine it.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal's worker-status ruling was upheld.
• Employment Tribunal, North Shields: Employment Judge Buchanan held, in a reserved decision dated 23 February 2018 and sent on 27 February 2018, that the claimant was a worker under section 230(3)(b) of the Employment Rights Act 1996, but not an employee.