Dr Kevin Connaughton v Greater Glasgow Health Board

The Employment Appeal Tribunal dismissed the claimant's appeal against an Employment Tribunal finding that he was not a '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 2003/88/EC. The central legal principle applied was statutory construction of the definition of 'worker' in domestic law: the phrase 'enters into or works under ... any other contract ... whereby the individual undertakes to do or perform personally any work or services for another party to the contract' was read as requiring a contractual nexus between the individual and the putative employer in the ordinary case.

The EAT accepted the Employment Tribunal's unchallenged findings of fact about the regulatory and contractual framework governing general medical services. It concluded that the relevant 2018 GMS contract was between the Health Board and the partnership, not the individual GP, that the contractual obligations were owed by the partnership, and that the Health Board had no direct power of direction, discipline or removal over the individual partner. In those circumstances the indicators of subordination required by EU case law to treat someone as a worker were absent. The tribunal further considered and rejected arguments based on indirect effect (Marleasing) and direct effect of the Directive against an emanation of the state.

Background and claim: The claimant, a long-serving general practitioner and partner in a GP partnership, sued the Health Board claiming unpaid paid annual leave and entitlement to future paid leave under section 230 ERA, regulation 2 WTR and directly under the Working Time Directive. The Employment Tribunal (EJ Whitcombe) decided at a preliminary hearing (judgment dated 17 July 2023) that the claimant was not a worker; the claimant appealed to the EAT.

Procedural history: Preliminary Issue heard before the Employment Tribunal (15–22 May 2023; judgment 17 July 2023). Appeal to the Employment Appeal Tribunal heard 3–4 December 2024; judgment 12 March 2025.

Issues before the EAT:

• Whether the domestic statutory definition of 'worker' requires a direct contract between the individual and the putative employer, or whether a person can 'work under' a contract to which they are not a party and still be a 'worker'.
• Whether the Employment Tribunal erred in its application of EU law and the Marleasing principle (indirect effect) when interpreting Regulation 2 WTR, and whether the claimant could rely directly on the Working Time Directive against the Health Board as an emanation of the state (direct effect / disapplication).
• Whether the Employment Tribunal was perverse in its factual findings on personal service and subordination.

Court's reasoning: The EAT began from the domestic text of s230 ERA and reg 2 WTR, reading the words 'whereby the individual undertakes to do or perform personally any work or services for another party to the contract' in context as referring to a contractual relationship between the individual and the other contracting party in the ordinary case. The tribunal's unchallenged findings established that the 2018 GMS contract was between the Health Board and the partnership; contractual obligations were owed by the partnership; the partnership, not the Health Board, was obliged to provide locum cover and to ensure minimum involvement by partners; the Health Board had no power to direct hours or remove an individual GP so long as they remained qualified and on the Performers List. Applying EU authority on the worker concept (the need for services performed 'for and under the direction of another' and indicators of subordination), the EAT held that the necessary indicators of subordination and integration were not present. The court therefore rejected the contentions based on indirect effect (Marleasing) and direct effect of the Directive in the claimant's favour. The appeal was dismissed.

Appeal dismissed. The EAT held that the domestic statutory definition of 'worker' (s 230 ERA / reg 2 WTR) was properly construed as requiring, in the ordinary case, a contractual nexus between the individual and the putative employer; on the unchallenged facts the 2018 GMS contract was between the Health Board and the partnership, not the individual GP, and the factual indicia of subordination required by EU law were absent. Accordingly the claimant was not a worker and could not establish entitlement under the domestic provisions or directly under the Working Time Directive.

Employment Tribunal preliminary issue heard 15, 16, 17 and 22 May 2023 (EJ Whitcombe); Employment Tribunal judgment 17 July 2023: claimant found not to be a worker. Appeal to Employment Appeal Tribunal: [2025] EAT 32 (this judgment). Case No EA-2023-SCO-000087-DT.