Locum GP worker not self-employed therefore entitled to sick pay and holiday
The Employment Appeal Tribunal (EAT) decision in Community Based Care Health Ltd v Dr Reshma Narayan UKEAT/0162/18/JOJ further highlights the need for the Government to help employers determine employment status by providing a reliable tool which is fit for purpose.
Currently, employers have to determine whether staff fall into one of three categories: employed, self-employed, or have ‘worker’ legal status. Staff then fall into one of two categories, employed earners or non-employed earners, to ascertain what tax and national insurance contributions are to be paid.
The existing government-provided tools are not fit for purpose, despite proposals in place for major employment law reforms in 2020. This means employers currently have to keep up with case law in determining employment status.
In CBCH v Narayan, CBCH, a “not-for-profit provider of out of hours GP services” argued that one of its contracted GPs was self-employed and therefore not entitled to holiday or sick pay. At the Tribunal the Judge ruled that Narayan was, in fact, a ‘worker’ under the Employment Rights Act 1996, having reviewed at least 13 factors to make the initial working status determination.
At Appeal, the lower tribunal ruling was upheld. The appeal judge found that Narayan was working regular shifts on a 12-week rota and was, therefore, a worker and not self-employed. She fell short of the requirement of ‘employee’ however as she was not required to accept work, nor was CBCH required to provide her with any.
The locum GP was therefore eligible for sick pay and holidays. The decision means that the so-called gig economy extends far beyond the typical low paid jobs such as food delivery drivers and Uber drivers, with some experts speculating the decision may cost the NHS hundreds of millions in back-paid holiday pay.
The decision underlines the urgent need for the Government to provide a reliable tool to help employers determine correct employment status.
Posted on 10/01/2019 by Ortolan
