Lancashire and South Cumbria NHS Foundation Trust v R Moon

The Employment Appeal Tribunal dismissed the trust’s appeal against a Manchester Employment Tribunal’s preliminary finding that the claimant, appointed as an Associate Hospital Manager (AHM) under section 23(6) of the Mental Health Act 1983, was a "worker" for the purposes of section 230(3)(b) of the Employment Rights Act 1996 and was "employed" under a contract personally to do work for the purposes of section 83(2)(a) of the Equality Act 2010. The EAT held that the first-instance tribunal had not erred in law in (i) finding a contractual relationship supported by offer, acceptance and consideration, (ii) analysing mutuality of obligation and control in the light of authorities such as Uber and Somerville, and (iii) concluding that section 23(6) MHA did not, expressly or by necessary implication, preclude worker status or the existence of a contract. The EAT rejected arguments that the statutory nature of the AHM role or Article 5 ECHR required the denial of employment protections.

The claimant, a qualified solicitor appointed by the trust as an Associate Hospital Manager from 13 July 2016, brought substantive claims under the Employment Rights Act 1996 and the Equality Act 2010. The Manchester Employment Tribunal held, at a preliminary hearing, that it had jurisdiction because the claimant was a "worker" (section 230(3)(b) ERA) and was "employed" under a contract personally to do work (section 83(2)(a) EqA). The trust appealed to the Employment Appeal Tribunal on multiple grounds.

Nature of the application:

• Preliminary hearing to determine status/jurisdiction: whether the claimant was a worker and/or employed under a contract personally to do work so that the Employment Tribunal could hear whistleblowing and EqA claims.

Issues framed by the court:

• Whether section 23(6) of the Mental Health Act 1983, which limits persons authorised by a trust to exercise hospital-manager powers, precluded the existence of an employment contract or worker status.
• Whether the AHM appointment was an officeholder role or a contractual engagement and whether there was an intention to create legal relations.
• The application of statutory tests for worker status (ERA s230(3)(b)), the extended definition (s43K), and the EqA test (s83(2)(a)), including the relevance of mutuality of obligation and control.
• Whether recognising worker status would conflict with Article 5 ECHR or undermine the statutory intent of section 23(6) MHA.

Court’s reasoning (concise):

• The Tribunal had evidence of offer and acceptance, payment of fees (consideration), documentation (job descriptions, honorary contract, appointment letter, payment records) and practical arrangements that pointed to an overarching contractual relationship together with individual contracts on each sitting.
• Applying the statutory tests and relevant authorities (including Uber, Somerville, Bates van Winkelhof, Pimlico Plumbers and Alemi), the Tribunal properly focused on substance over labels: mutuality of obligation and a degree of control and integration supported worker status while recognising the AHM’s decision-making independence at hearings.
• Section 23(6) MHA does not expressly or by necessary implication exclude worker status; the statutory bar on appointing executive directors or employees does not displace the ERA/EqA tests. Article 5 ECHR and the Code of Practice did not require the denial of employment protections; indeed protections (for example against detriment for whistleblowing) could reinforce independence.
• The EAT concluded the Tribunal’s approach and conclusions were open to it on the facts and contained no error of law; all grounds of appeal therefore failed.

The EAT therefore dismissed the appeal, allowing the claimant’s substantive claims to proceed to final hearing.

Appeal dismissed. The Employment Appeal Tribunal concluded that the Employment Tribunal had not erred in law in finding that the claimant, appointed as an Associate Hospital Manager under section 23(6) of the Mental Health Act 1983, was a "worker" within section 230(3)(b) of the Employment Rights Act 1996 and was employed under a contract personally to do work within section 83(2)(a) of the Equality Act 2010. The EAT held that (i) a contractual relationship existed (offer, acceptance, consideration), (ii) mutuality of obligation and integration supported worker status notwithstanding the statutory framework for AHMs, and (iii) section 23(6) MHA and Article 5 ECHR did not, expressly or by necessary implication, preclude worker status or render the contract unenforceable.

Appeal to the Employment Appeal Tribunal from a preliminary decision of the Manchester Employment Tribunal (Employment Judge Doyle, sitting alone) on jurisdiction/status issues. The original Employment Tribunal decision is reported in the judgment bundle but no neutral citation for the first-instance judgment is provided in the text of this judgment.