Dr Kevin Connaughton v Greater Glasgow Health Board

A person claiming statutory worker status under section 230(3)(b) of the Employment Rights Act 1996 or regulation 2 of the Working Time Regulations 1998 must have a contractual relationship with the putative employer. Working in the performance of a contract made between that employer and a partnership does not suffice where the individual is not a party to that contract.

For EU working-time purposes, worker status requires services performed for and under another’s direction in return for remuneration. Regulatory requirements governing a service do not establish the necessary control or subordination where the individual retains genuine independence in providing it.

The claimant was a GP and a partner in a practice which contracted with the respondent Health Board to provide general medical services. He sought paid annual leave, payment for past unpaid leave, and a declaration as to future entitlement.

An Employment Tribunal held, following a preliminary-issue hearing, that he was not a worker under section 230 of the Employment Rights Act 1996, regulation 2 of the Working Time Regulations 1998, or the Working Time Directive. The contract was between the Board and the partnership, and the Board did not direct or control the claimant’s day-to-day work.

He appealed, principally contending that he worked under the partnership contract and that EU law required worker status despite the absence of a direct contract.

1. Appeal dismissed. The Tribunal had permissibly held that the claimant was not the respondent’s worker for the purposes of section 230 of the Employment Rights Act 1996, regulation 2 of the Working Time Regulations 1998, or the Working Time Directive.

2. The statutory words must be read as a whole. The requirement that the individual undertakes personally to perform work or services for another party to the contract envisages a contractual relationship between the putative worker and putative employer. The claimant’s partnership, not the claimant personally, contracted with the Health Board. His performance of services under that arrangement could not meet the domestic definition.

3. The decisions in Plastic Omnium Automotive Ltd v Horton and Catt v English Table Tennis Association Ltd supported that construction. The cases concerning workers whose apparently non-standard arrangements in fact created a direct relationship with the putative employer did not assist the claimant.

4. The EU concept of worker required the claimant to perform services for and under the direction of another person for remuneration. The Tribunal was entitled to find that the claimant’s independence was real. The Board did not direct his daily work, control his hours, manage him, discipline him, or remove him from the provision of services. The regulatory framework governed the wider delivery of primary care but did not create the required relationship of direction, control or subordination.

5. Accordingly, neither conforming interpretation nor direct effect of the Working Time Directive altered the result. The hypothetical analysis of worker status on the assumption of a direct contract was unnecessary. The claimant had not maintained a separate perversity challenge and, in any event, its high threshold was not met.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal’s conclusion that the claimant was not a worker was upheld.
• Employment Tribunal: preliminary-issue judgment dated 17 July 2023 held that the claimant was not a worker under section 230 of the Employment Rights Act 1996, regulation 2 of the Working Time Regulations 1998, or the Working Time Directive.