G Bains v Shrewsbury and Telford Hospital NHS Trust: 1302699/2024
EMPLOYMENT TRIBUNALS
Case No 1302699/2024
Between
Gursimran BainsClaimantShrewsbury and Telford Hospital NHS Trust RECORD OF A PRELIMINARY HEARINGRespondent
Before
Employment Judge MurdinIn person for claimantMr Gibson (instructed by Solicitor) for respondentDate 15 June 2025
JUDGMENT
[1]At all material times, the Claimant was a worker for the purposes of s230(3)(b) of the Employment Rights Act 1996.[2]Consequently, the claim for unfair dismissal does not enjoy reasonable prospects of success for the purposes of Rule 38(1)(a) of the Employment Tribunal Procedure Rules 2024.[3]Given that is the only remaining claim being brought by the Claimant, the claim is hereby struck out. PHCM Order 1 of 8 September 2023
REASONS
The Complaints
[4]The Claimant is making the following complaints: (i) Unfair dismissal.
The Background
[5]The Claimant was engaged by the respondent NHS Trust as a locum Oral and Maxillofacial Senior House Officer from September 2019. She says her contract terminated when she was constructively dismissed on 9 February 2024. The respondent says the claimant was neither dismissed, nor did she resign. Early conciliation started on 3 December 2023 and ended on 14 January 2024. The claim form was presented on 11 February 2024.[6]The claim is about constructive unfair dismissal. The respondent’s defence is that the claimant was not an employee of the trust but was contracted as a locum worker. If it is found the claimant was an employee, the respondent says it did not dismiss the claimant, constructively or at all.[7]The matter came before EJ V Jones on 7th January 2025, when the claim was case-managed. A final hearing has been listed for February 2026.[8]By way of completeness, previous claims against 2 individual Respondents were recorded as withdrawn, as were previous complaints of discrimination. Thus, the claim now only proceeds against the aforementioned Trust, with the only remaining claim being one of constructive unfair dismissal. The parties’ positions[9]I have heard evidence from both parties, and read the documents within the bundle. Their respective positions can be summarised as follows: PHCM Order 2 of 8 September 2023[10]The Claimant, within her Claim Form, focuses almost exclusively on the discrimination allegations which are now withdrawn. Furthermore, and within an email dated 25th March 2024, she deals with the unfair dismissal claim in a little more detail, although the issue of employment status remains untouched.[11]I was, however, assisted by the Claimant’s witness statement dated 4th April 2025, and I also heard evidence from Dr Bains.[12]I am assisted by a 298-page bundle, which I have read. In particular, there is a contract headed ‘Medical Bank’ at page 114 dated 17th December 2019, which was signed by the Claimant. Under the heading ‘Hours’ the Respondent drew my attention to the following: Please note that there is no guarantee that you will be offered work with the Trust. By the same token, if offered work, you are not obliged to accept this.[13]By contrast, the Claimant reminded me that, at various places throughout the document, references are made to ‘employee’ and/or ‘employment’. The Claimant also relies upon documentation in relation to the rota, email correspondence in relation to various issues at work, and an undated letter from her accountant confirming their view that she was an employee.[14]She also helpfully drew my attention to references within her pension documentation to ‘Employment Timeline’ and to references on her payslips to ‘Employee category’.[15]Within the Grounds of Resistance dated 12th September 2024, the Respondent avers that the Tribunal does not have jurisdiction to hear the claim because the Claimant was not employed by the First Respondent, rather she was engaged as a worker. It is submitted by the Respondent that the Claimant was engaged and remunerated by the Respondent as a locum doctor under its direct engagement model and consequently, the Claimant is not entitled to the protection of sections 94 and 98 of the Employment Rights Act 1996. PHCM Order 3 of 8 September 2023[16]In addition to the written evidence, I heard oral evidence from 2 witnesses: Dr Bains and Mr Dimmock, the Respondent’s Head of Medical People Services. Both were clearly honest and credible witnesses, who did their best to assist the Court. They were consistent with their written statements, which I have read, and maintained their positions throughout their evidence.[17]Dr Bains maintained that she was an employee. In particular, she stressed the fact that she had been initially suspended, which was indicative of her being an employee. She explained her belief that there had been no change to her terms and conditions following the completion of her training, and her work had never been presented as ‘bank shifts’.[18]She accepted that she had signed the document headed ‘Medical-Bank – terms and conditions’ which begins on p114 of the bundle. She explained that she had felt pressured to sign it, and believed that the document’s use of ‘employed’ and ‘employment’ supported her contention that she was employed. Dr Bains also relied on a document at p225 which referred to treating her ‘as if she is a contracted SaTH employee.’[19]Mr Dimmock explained that the Claimant had been an employee whilst she was training. During that time, she was engaged under a fixed-term contract which ended in September 2019. Thereafter, his evidence was that Dr Bains worked under standard terms and conditions for all bank staff.
Consideration
[20]The distinction between a worker and an employee has been the regular subject of disputes between parties in Employment Tribunals. The high profile decision in Pimlico Plumbers Ltd v Smith [2018] UKSC 29, [2018] IRLR 872, [2018] ICR 1511 gave useful guidance. In that matter, the company used as its workforce 125 'contractors', including the claimant. They wore its uniforms, drove its marked vans and were represented to customers as its workforce. They were directed to customers by the company, who invoiced for the work. On the other hand, they were described in the agreement as self-employed, they had to look after all PHCM Order 4 of 8 September 2023 matters of their tax and NI, they provided their own tools and equipment, they were responsible for the quality of their work and had to be insured. The agreement stipulated a maximum working week over five days, but there was no obligation on either side to give or perform work; although there was some flexibility in who did what work, there was no formal substitution provision. Moreover, during his engagement the claimant considered himself to be selfemployed, looked after his own tax affairs (on a trading basis) and registered for VAT. However, when his engagement was terminated, he claimed unfair dismissal (and certain other mainstream employment law rights), disability discrimination and outstanding statutory holiday pay. The tribunal held that on these facts:(1) he was not an 'employee' within the Employment Rights Act 1996 and so could not claim unfair dismissal (or the allied employment rights) but(2) he was a 'worker' so that his disability discrimination and holiday pay claims could proceed. The EAT agreed and by the time the case reached the Court of Appeal the claimant's cross appeal on employee status had been abandoned.[21]When the case went on further appeal to the Supreme Court ([2018] UKSC 29, [2018] IRLR 872, [2018] ICR 1511) and the decision of the ET was again upheld, the Supreme Court made clear that, despite the fact that this was an appeal at the highest level, the decision was ultimately one on the facts with little attempt to give any wider guidance.[22]The second leading case is the decision in Uber BV v Aslam, which concerned the status of Uber taxi drivers. Their contractual arrangements with Uber were carefully drafted to negate legal liabilities including those relating to working time and the national minimum wage. They were permitted to work for other organisations (though substitution was not allowed), had to look after their own vehicle and licensing and viewed themselves as self-employed for tax purposes; there was no uniform and no Uber logo for their cars, and the elements of control that existed were primarily those required by statutory regulation for any form of public vehicle hire.[23]The basic argument for Uber was that it was just another (hi-tech) form of taxi /minicab business and that ultimately it provided an app-based service for the PHCM Order 5 of 8 September 2023 drivers; the drivers did not provide services for it. However, the tribunal held that the claimants were indeed 'workers' because the true relationship was not that set out in the 'carefully crafted' documentation; this was so each time they switched on the app and were able and willing to accept assignments (an important point also for defining 'working time' and working out their 'unmeasured work' for NMW purposes). On Uber's appeal, the EAT ([2018] IRLR 97) held that that was a conclusion open to the tribunal, relying primarily on the power to look behind contractual documentation to the reality of the relationship sanctioned in Autoclenz Ltd v Belcher [2012] UKSC 41, [2011] IRLR 820. On further appeal, the Court of Appeal ([2018] EWCA Civ 2748, [2019] IRLR 257) again rejected the employer's appeal, but with a split of opinion that was capable of muddying the waters further. On further appeal, however, the Supreme Court ([2021] UKSC 5, [2021] IRLR 407) found unanimously for the drivers and upheld the ET's decision as to both status and timing.[24]The Supreme Court adopted with approval the approach taken in Carmichael v National Power Ltd [2000] IRLR 43, [1999] ICR 1226, a case in which there was no formal written agreement. This does not mean that the terms of any written agreement should be ignored. The conduct of the parties and other evidence may show that the written terms were in fact understood and agreed to be a record, possibly an exclusive record, of the parties' rights and obligations towards each other. But there is no legal presumption that a contractual document contains the whole of the parties' agreement and no absolute rule that terms set out in a contractual document represent the parties' true agreement just because an individual has signed it. Furthermore, as discussed, any terms which purport to classify the parties' legal relationship or to exclude or limit statutory protections by preventing the contract from being interpreted as a contract of employment or other worker's contract are of no effect and must be disregarded.[25]It was clear however, that the question of status where the enquiry goes beyond simply the meaning of contractual terms remains one of fact. PHCM Order 6 of 8 September 2023
Conclusion
[26]In this instance, and on balance, I conclude that the Claimant was a worker for the purposes of s230(3)(b) of the Employment Rights Act 1996. In particular, I rely on the fact that the Claimant could pick and choose which shifts to work, and indeed, whether she would work at all. That important feature is set out within Dr Bains’ contract, and she confirmed in her evidence that it accurately represented the position.[27]Neither was she guaranteed work – again a feature which Dr Bains confirmed was reflected in reality. In those circumstances, it seems clear that there existed no mutuality of obligation as between the parties.[28]I further take into account the fact that the Claimant was not entitled to annual holidays and/or sick pay, and was entitled to find her own cover for shifts if she was unable to work.[29]I take into account the fact that there are, within the various documents, references to ‘employment’, ‘employee’ and ‘staff’ and other phrases associated with, and/or indicative of employment. To my mind, those references are not determinative. They are however, misleading and careless and have contributed to Dr Bains’ mistaken belief that she was employed by the Respondent. Those references do not however represent the reality of the relationship, which is what I have to examine.[30]There are also multiple references to bank work, and most notably, the document is headed ‘Medical Bank – terms and conditions)[31]Consequently, and having concluded that the Claimant was at all material times, a worker for the purposes of s230(3)(b) of the Employment Rights Act 1996, the claim for unfair dismissal does not enjoy reasonable prospects of success for the purposes of Rule 38(1)(a) of the Employment Tribunal Procedure Rules 2024. PHCM Order 7 of 8 September 2023