In order to bring a claim of discrimination, claimants have to show they are “in employment” which covers workers and those who perform work personally. In Community Based Care Health (CBCH) Ltd v Narayan, the Employment Appeal Tribunal (EAT) held that a GP who set up a limited company for payment purposes but who worked regular shifts for a not for profit organisation, was “in employment” and a worker.
Dr Narayan was one of a number of GPs who worked on a regular basis for CBCH, a not for profit organisation providing a local out of hours service. She was not required to accept work, nor was CBCH obliged to offer her any, although she generally followed a set shift pattern at one place of work. She was able to take holidays when she wanted as long as she gave advance warning. She also worked as a self-employed locum through an agency.
In October 2015, on advice from her accountant, she set up a company through which she channelled payments both from CBCH and the agency. After an issue arose about advice she had given to a client in November 2016 and another allegation that she had swapped duties without informing anyone, CBCH told her in February 2017 that it would not offer her further work.
She lodged claims of unfair dismissal, race and sex discrimination, breach of contract and unpaid holiday pay. CBCH said she was self-employed.
The tribunal concluded that Dr Narayan was a worker, but not an employee on the basis that:
- She was free to work as a locum for another agency without CBCH’s permission and did not receive sick pay or holiday pay from them.
- She provided her own equipment and did not have to wear a uniform.
- The documentation regulating the employment relationship was “sparse” consisting of a manual requiring her to comply with the rules set out by CBCH, which did not include a disciplinary or grievance procedure.
- She was free to accept or reject an offer of work from CBCH; likewise it did not have to offer her work.
- She was required to work personally for CBCH. If she was not available to work a shift, she had to hand that shift back unless she could find someone suitable who had been approved by CBCH.
CBHC appealed arguing firstly that the tribunal was wrong to conclude that, after October 2015, it was still contracted to Dr Narayan as opposed to the company she had set up; secondly that it had failed to apply the decision in Suhail v Herts Urgent Care in which a locum GP was found to be self-employed; and thirdly, that it was wrong to conclude that Dr Narayan was an “integral part” of CBCH’s operations.
Dismissing CBCH’s appeal, the EAT held firstly that the contract was between it and Dr Narayan herself as only she could satisfy the strict qualifications and performance requirements set by CBCH and by the NHS nationally. As such, it had therefore contracted with her and not the company she had set up for payment purposes.
With regard to the decision in Suhail, the EAT held that the facts were different in this case as Dr Suhail marketed his services to a range of NHS bodies while Dr Narayan had worked regular shifts for CBCH over many years.
As for the third ground of appeal, the EAT held that the tribunal was entitled to come to this conclusion on the facts that it had found.
This case confirms that an individual working through a limited company can be a worker in the circumstances of this case. In this case, the fact that the GP provided her services personally over a period of approximately 12 years and did not market her services, tipped the balance leading to a finding that she was a worker and not an independent contractor.