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Our member Nick Singer was recently involved in an interesting and important EAT case, Suhail vs. Barking NHS TRUST and PELC (UKEAT/0536/13/RN reported on Lawtel). Dr Suhail is a GP. He signed a contractual agreement with PELC, a not for profit organisation, that assists in the placing of GPs with NHS Trusts. In this case Dr Suhail was placed by PELC into the Barking NHS Trust where he worked as an out of hours GP. The Tribunal had found that Dr Suhail was neither an employee nor worker of either PELC or the Trust. He appealed and the appeal was dismissed.
There were a number of Grounds of Appeal, but the most interesting part of the appeal was the view that the EAT took as to whether Dr Suhail was a worker. It found that because he was able to market his services as a GP to anyone, the Tribunal’s decision was right, as that meant the Respondents were his customer or client. This seems to support a theme in the case law that although such cases always turn on their facts, a key criteria is whether a person can sell their services to anyone. If they can, they are probably not a worker, if they cannot they probably are (assuming of course that the other relevant criteria are established).
The Judgment can be viewed here: Download PDF