Do you know who is working for you?
There has been a further development in the recent line of case law on employment status, which included the decisions regarding Uber drivers and Pimlico’s plumbers.
There is a hierarchy of employment status, ranging from self-employed contractor to worker to employee, each of which comes with a greater protection of employment rights. In Community Based Care Health Ltd (CBCH) v Narayan, the Employment Tribunal had to determine which category the doctor, who provided out-of-hours GP services to CBCH, fell into.
The key factors which were considered when the Tribunal looked at this issue were: -
- The doctor had worked regular shifts for CBCH for over 12 years;
- She was not obliged to accept any work, and CBCH was not obliged to provide any (i.e. there was no “mutuality of obligation”);
- She provided her own equipment;
- She held her own insurance and worked through her own limited company through which she was paid and accounted for tax;
- She could not provide a substitute to perform the services instead of her; and
- Whilst she did not need the permission of CBCH to perform other work, she was required to be audited to ensure she had the required qualifications and competency.
The Employment Tribunal at first instance concluded that Dr Narayan was a worker, and not self-employed. CBCH appealed, but this appeal was dismissed by the Employment Appeal Tribunal (EAT). They found that despite Dr Narayan operating through a limited entity, and there being no mutuality of obligation, a corporate entity could not satisfy the requirements of the role (i.e. the expected qualifications and competency) she was asked to perform personally without the option of providing a substitute. Therefore, they found that she was a worker, and entitled to the various rights and protections which are associated with that title.
This is yet another case which shows a trend of tribunals finding in favour of individuals, granting them as much protection as can be afforded. There are a number of the facts in this case which would ordinarily suggest self-employed status, and each case will turn on the individual circumstances which it bears. What this does go to show, particularly with the introduction of the new off-payroll working rules coming in under IR35 next year, is that it is becoming increasingly more important to know who is working for your organisation.
If you require any advice, or have any concerns in relation to this issue, please do not hesitate to contact one of our employment law experts.