BACKGROUND: We often receive calls regarding locums or associates working on a ‘self-employed’ basis. Genuine self-employed people have a contract for services, not a contract of services, as an employee does, and as such they have no employment rights.
However, a case involving a private medical group and a self-employed doctor, Dr W, may change that position. A recent hearing ruled that, despite not having a contract of employment, Dr W could in fact be classed as a worker.
Dr W worked for the group on a self-employed basis, carrying out hair restoration work. When the agreement was terminated he lodged a tribunal claim for, amongst other things, unlawful deduction from wages and unpaid holidays.
OUTCOME: The tribunal rejected Dr W’s claim that he was an employee but agreed that he could be classed as a worker. This decision was based on the fact that Dr W had a contract to perform the work himself and could not send a substitute. The tribunal found that Dr W was an independent contractor engaged by the group to treat their own patients.
The group appealed the decision and the appeals tribunal considered the test to establish if someone is a worker. Such factors that are considered include:
• Is the individual marketing their services as an independent person to the world in general?
• Does the individual have to perform work or services personally or can they send a substitute or sub-contract the work?
• Is the individual undertaking the work as part of their own business (e.g. if the 'employer' is actually one of their clients)?
In this case, it was difficult to regard the group as just a purchaser of Dr W’s medical skills and although there was no employment contract in place, Dr W was clearly an integral part of its business. Due to this, it was ruled on appeal that Dr W was a worker and he should receive his unpaid holidays and wages.
While it is not in the remit for our employment law service to provide advice to doctors or dentists on their own contracts, this case is a good example of how, by hiring an associate within your practice on a self-employed basis, they could actually be deemed a worker and be entitled to certain rights.
Workers are entitled to a number of rights and the rights of workers compared to employees can be found on the following link: http://bit.ly/PHS3sa
This page was correct at the time of publication. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.
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