Dr H Dahwa v Cardiff and Vale University Local Health Board: 1603322/2023
EMPLOYMENT TRIBUNALS
Case No 1603322/2023
Between
Dr H DahwaClaimantCardiff and Vale University Local Health BoardRespondent
Before
Employment Judge R BraceIn person for claimantMs K Parker (instructed by Counsel) for respondentDate 28 January 2025
JUDGMENT
[1]The application to strike out the claim is refused.[2]The Tribunal will decide at the final hearing whether or not the claim was presented within the applicable time limit.[1]The Claimant was a worker within the meaning of s.203(3)(b) ERA 1996 at all times when she was working for the Respondent’s Out of Hours Service in the course of a booked and authorised shift.[2]The Claimant’s claim for unauthorised deduction of wages was presented more than two years after the deduction, and accordingly the Tribunal has no jurisdiction to consider such a claim due to s.23(4A) ERA 1996[3]The Claimant’s claim for compensation related to entitlement to leave was presented beyond the time limits prescribed in Reg 30 WTR 1998. It was reasonably practicable for the Claimant to have presented her claim earlier, and therefore the Tribunal has no judication to hear such a claim due to Reg 30(2) WTR 1998.
REASONS
[1]The above case was listed before me for a two day final hearing. It had previously been case managed by EJ Brace (8th April 2024) and EJ Jenkins (6th August 2024). In particular, EJ Brace had identified the issues with the parties, which were recorded in the Case Management Order dated the same day.[2]This case principally concerned the employment status of the Claimant, who brought a claim of unpaid accrued holiday pay on termination of her contract (Reg 14(2) WTR 1998), or in the alternative, an unlawful deduction of wages in respect of unpaid accrued holiday pay (s.13 ERA 1996).[3]The Claimant is, and was at all material times, a registered General Medical Practitioner (“GP”). She was engaged by the Respondent to provide “out of hours” GP services via a document titled “GP Consultancy Agreement 2016”. The Claimant says that she was a worker within the meaning of s.230(3) ERA 1996, which gives her the right to pursue the above claims. The Respondent denies that the Claimant was a worker, and says that she was working on a self-employed basis.[4]A further issue to be determined, as identified by EJ Brace, was the question of the termination date of the Consultancy Agreement. This issue relates to a jurisdiction/time point issue both claims under ERA 1996 and WTR 1998. Three potential dates were put forward as being the date of termination, namely(1)31st October 2023,(2)18th September 2021 or(3)18th September 2022. If the date of termination was either (2) or (3), the claims were out of time (based on the dates of presentation of the ET1 and ACAS Early Conciliation) and I would need to consider the test for extension of time under s.23 ERA 1996 and/or Regulation 30(2) WTR 1998.[5]I was provided with a bundle of 500 pages. Not all of the bundle was agreed, with Tab D being headed “Respondent’s Documents (Not Agreed)”. I made enquires with the Claimant as to what the basis of opposition of these documents being included was. The Claimant explained that she did not understand the relevance of these documents were. I indicated that the question of relevance, whilst interlinked with, was ultimately distinct to the question of admissibility, and that if the only opposition to these documents was their relevance, then it was best for the documents to be included. If the Claimant was correct and there were irrelevant, then no action would need to be taken. If their relevance was subsequently made clear during the evidence, the Claimant would have the opportunity to respond.[6]The Claimant gave evidence in support of her claim, and I heard from Dr Sherard Le Maitre (Clinical Director of CAV 24/7) and Danielle James (Senior Operations Manager of CAV 24/7) on behalf of the Respondent. The Respondent provided a statement (and had intended to call) Lianne Davie (Shift Co-Ordinator for CAV 24/7). However, she was unable to attend either day of the final hearing, and the Respondent made no application to adjourn the hearing to allow her to attend. Her witness statement was signed with the statement of truth, and I indicated that I could take her evidence into account, although on the basis that it had not been challenged by the Claimant in crossexamination and therefore I could only attach limited weight to it.[7]At the conclusion of Ms James’ evidence, the Respondent made an application to introduce a further document, {Grievance Policy], which Ms James had referred to during her evidence. This policy stated that it only applied to employees, and therefore was not directly relevant to the Claimant’s situation (whatever that may be), although Ms James gave evidence that the policy demonstrated the framework that the Respondent would have dealt with any complaint or concern from the Claimant or another GP in the Out of Hours Service.[8]Whilst the Claimant initially opposed the introduction of this document, seemingly on the basis that the document didn’t apply to her, once she understood that the Respondent was not claiming that it did apply to her, but wanted to adduce the policy because it arose in Ms James’ evidence, she withdrew that opposition and the document was included in the bundle.[9]The finally preliminary matter to record is the format of the hearing. It was intended that the hearing would be in person, in accordance with the Presidential Guidance on remote and in-person hearings (dated 14th September 2020). However, the weekend prior to hearing saw the United Kingdom impacted by Strom Burt. One consequence of this was that there were no trains running between London and Cardiff on Sunday 24th and Monday 25th November 2024 which prevented the Respondent’s Counsel from attending in person. I granted permission for Ms Dobbie to attend remotely via CVP to ensure an effective hearing. Unfortunately there was problems with CVP on Day 1 which caused frequent delays, although the technology worked without difficulty on Day 2.[10]Partially due to the technology issues, submissions were concluded around 1450hrs on Day 2. I indicated that I would try and give an oral judgment the same day, however the Claimant indicated that irrespective of the outcome, she would be requesting written reasons. In light of this, I decided to reserve judgment and promulgate full written reasons. Adjustments[11]In correspondence with the Tribunal the Claimant raised her diagnosis of dyslexia, and the need for adjustments at the hearing. There were two particular adjustments requested, both during the Claimant’s evidence. Firstly, additional time for the Claimant to locate a page in the bundle and to read any document referred to. Secondly, for the Claimant to be allowed a blank notepad to make notes during questioning.[12]I directed myself to the Equal Treatment Bench Book and indicated there was no difficulty in respect of the second request (indeed, the ETBB specifically refers to a potential difficulty of being able to retain information without notes, which could assist the witness’ working memory. This adjustment would assist the Claimant in particular for re-examination, where she would have the opportunity to clarify or explain anything raised during cross-examination.[13]For the first requested adjustment, Ms Dobbie indicated that it was her practice to read out any extract of a document referred to before asking a question, which would alleviate much of the Claimant’s concern. In addition, I asked the Claimant to confirm when she had located a page before Ms Dobbie continued, and stressed that if she wanted time to read around a document or email chain, beyond the extract that Counsel had read out, she should indicate this to me.
Findings of Fact
[14]Ms Dobbie submitted that I should treat the Claimant’s evidence with caution, and that overall she was not a credible witness. In particular, Ms Dobbie referred to the Claimant’s habit of mis-representing written evidence in her witness statement, and essentially (my words) twisting it to suit her case.[15]Ms Dobbie relied heavily on the 12 examples cited at §54 of the Claimant’s statement, where the Claimant says each example was a communication that mandated the Claimant to do something, such as familiarise themselves with a practice or policy, as well as further examples of mandatory reading sent by the Respondent (at §70). On exploring these in cross-examination, the Claimant accepted that the majority of communications did not contain some mandatory instruction or requirement.[16]I further note that at §63 of the Claimant’s statement, under the heading “Equipment” she refers to the Respondent advertising the OOH Service as being “fully equipped”, and referring to [97]. In fact, when looking at that document, the Respondent referred to offering a “fully equipped triage suite…” at two of the Respondent’s sites, which is entirely different from the full OOH service being “fully equipped”.[17]Finally, the Claimant did not give direct evidence about what other roles she was working for the NHS (either for the Respondent or another Health Board) at the material time. Indeed, she was overly defensive about this – when I asked her a question about the difference between the hourly rate for the OOH service and an hourly rate she could expect as a Locum GP, her instinctive reaction to me was to decline to answer the question because she did not “see the relevance” of it. It became apparent from examination of the Claimant’s payslips that she had in fact done a limited amount of work as a Locum GP for the Respondent during the same period, something that was absent from her statement.[18]I am not prepared to go so far as to say that the Claimant’s credibility is damaged to the extent that I prefer the Respondent’s evidence on every disputed point, however where I have preferred the evidence of the Respondent’s witnesses, this is a factor that I have taken into account in the Respondent’s favour.[19]I make the following findings of fact on the balance of probabilities – i.e. what is more likely than not to have occurred.[20]At the start of April 2020, in the early days of the Covid-19 pandemic and the first lockdown national lockdown in Wales, the Respondent decided to recruit additional GP Staff for “resilience” (i.e. extra capacity) for the Primary Out of Hours Care Scheme. The Respondent’s Out of Hour Service became CAV 24/7 from 1st August 2020.[21]The Claimant applied for a GP position via a completed enrolment form on 27th April 2020. This was acknowledged by the Respondent on 29th April 2020, at which point the Respondent also sent the Claimant a copy of the Consultancy Agreement, a PowerPoint file and consent form concerning the Individual Health Record (“IHR”) system, as well as some other documents including the All Wales Policy on NHS Indemnity and Insurance.[22]The Claimant never signed the Consultancy Agreement, although in her initial email attaching her enrolment form on 27th April 2020, she did confirm that she had “read and acknowledge the consultancy agreement”. I find that she did agree to Consultancy Agreement, and understood its terms prior to sending this email.[23]The Consultancy Agreement contained the following terms:a. An acknowledgement and understanding that there was no guaranteed or minimum amount of work – either that the Respondent had to provide, nor the Claimant had to perform;b. The Claimant was required to be, at all material times, a General Medical Practitioner fully registered with the GMC, authorised to practice medicine in the United Kingdom, and on the All Wales Medical Performers List;c. That a percentage of the Claimant’s work would be audited by the Respondent using the RCGP Urgent and Emergency Care Clinical Audit Toolkit. If the audit showed a negative trend, then a meeting would be held with the Medical Advisor for the OOH Service and a period of improvement would be offered (up to one month). In the event that there was no improvement, the Respondent could terminate the agreement or offer alternative duties.d. In terms of other termination clauses, either party could give one month’s written notice to terminate the agreement. The Respondent also had the ability to terminate the agreement without notice in various scenarios (see Clause 12);e. Shifts would be available to book online on a monthly basis;f. The Claimant could cancel a shift by giving at least 14 days’ notice to the Rota Administrator;g. The Claimant would be paid an hourly rate for time worked. On a weekday, between 1830 and 0000hrs, this was £80 per hour. At any time during the weekend, or from 0000 to 0800hrs on Monday, it was £90 per hour.h. If the Claimant arrived more than 15 minutes late for work on two or more occasions they would have their pay reduced at a rate of one hour per occasion (so on the 2nd occasion – 1 hour, on the 3rd occasion – 2hrs, etc)i. If the Claimant cancelled her shift with less than 14 days’ notice then a one hour deduction of pay would be imposed. This deduction also increased by an hour for each subsequent cancellation. The Claimant would also be responsible for paying the additional hourly charge (between the contractual hourly rate and an enhanced agreed rate) if the Respondent could only secure a replacement GP at a higher hourly rate;j. The Claimant would be paid on a monthly basis in arrears, via credit transfer. She would be paid on or around the 21st day of the month for work performed during the entirety of the previous month. She warranted that she would be responsible for declaring all income to HMRC, and indemnify the Respondent in the event of any income tax, primary national insurance contributions, interest, penalties or costs imposed by HMRC on the Respondent;k. If the Claimant was VAT registered, then she would need to supply the Respondent evidence of such registration;l. The Claimant could opt in to the NHS Pension Scheme, including contributions by the Respondentm. The Claimant was allowed to undertake other activities so long as they did not conflict with the work done for the Respondent;n. The parties recognised that the agreement was personal to the Claimant and she was not allowed to assign or sub-contract without written permission from the Respondent.[24]The Claimant attended a 1hr induction on 27th June 2020. This induction was unpaid. Having completed the induction, the Claimant was then able to book shifts via the “Rotamaster” system.[25]Rotamaster did not work precisely as stated in the Consultancy Agreement. Rather than booking a shift via the system, she would submit a booking request, which the Respondent could either approve or refuse (an example of an approval is at [223], albeit this shift was subsequently cancelled). Dr Le Maitre’s evidence was that each booking request was manually reviewed and could be rejected without consequence for the Respondent. Examples of reasons for refusal were that a shift might have multiple booking requests, to concerns over the GP’s reliability (I find that reliability refers to issues over punctuality or previous cancellations given the penalty clauses in the Agreement) or fitness to practice (in the regulatory sense).[26]The Respondent would also from time to time send emails with unfilled vacancies (an example is at [180]) which could be booked by the Claimant via email. Although not explicitly covered in the Consultancy Agreement, I find that the circulation of unfilled vacancies was how the Respondent dealt with vacancies that had been unfilled for 28 days or more and were subsequently “released” (see Clause 5.2.5).[27]I accept that the Consultancy Agreement was accurate in respect of the requirement for the Claimant to be available for work, and for the Respondent to provide work. There was no requirement on either side – the Claimant was (subject to issues around “Archiving”, below) never told she must work a certain amount of shifts, nor did the Claimant ever request a minimum amount of work from the Respondent.[28]I accept that the Claimant would have been able to cancel a shift, without consequence, more than 14 days before, in line with the Agreement. However, once that deadline had expired, the Claimant had an obligation to do the work personally.[29]As I have referred to above, the Claimant did perform work for the Respondent, and other Health Boards, in different roles at the material time. In September 2021 she worked as a Locum for the Respondent (and received a sum in lieu of holiday pay for this work in her October 2021 pay). She worked as a Locum at GP Practices’ as well, and was Clinical Director at Cwm Taf Morgannwg University Health Board where she worked between 2-4 days per week. It was concerning to the Tribunal that the Claimant did not refer to any of these appointments in her witness statement, and she was vague as to the exact dates and hours worked at Cwm Taf.[30]It was agreed evidence that the Claimant never requested a substitution for one of her shifts, or sought to avail herself of the substitution clause in the Agreement. I accept Ms James’ evidence that if the Claimant had requested permission to substitute, then the Respondent would only have granted it if the substitute was a suitably qualified GP and was already “on the books” of the Respondent – i.e. had completed all necessary checks and induction.[31]The Claimant was never provided with a contact list of suitably qualified GPs in order to make contact with other OOHs staff to enquire if someone would be prepared to substitute. In reality, the substation mechanism was, I find, an exception to the 14 day cancellation for the Claimant to avoid a cancellation penalty, however, was unlikely to be used by the Claimant in practice.[32]As well as the hourly rates set in the Agreement, the Respondent would offer ad hoc higher rates of pay for “bundle shifts”. The Claimant undertook 7 shifts during August and September 2020 which were classified as “bundled” and attracted an enhanced hourly rate of £110.00. The Respondent also offered enhanced hourly rates for bank holidays and the Christmas period.[33]Whilst the Claimant and other GPs could offer a different hourly rate, this was unlikely to be accepted by the Respondent (and indeed, I have not been shown any particular examples of this occurring in practice). Ms James in crossexamination accepted that if a shift remained unfilled then a GP could offer an increased hourly rate as a condition for acceptance, however overall whilst the GPs could request a higher hourly rate, the Respondent’s stance was that they wouldn’t accept that.[34]As per the Agreement, the Claimant was paid on or around the 21st of each month. Her payslips were in the bundle, and her last payment was on 21st October 2021, for work done on 18th September 2021 [493]. All payments made to the Claimant were made via PAYE, with both the Claimant’s pension contributions, and where appropriate, national insurance and income tax deducted at source (not all of the payslips show income tax or NI deductions, given the small amounts of income paid in some months). I heard no evidence as to whether the Claimant completed her own tax return (as the Claimant had other sources of income from other roles, some of which were PAYE).[35]The Claimant would attend a shift with her “GP’s Bag”, which included basic medical equipment such as a stethoscope, blood pressure monitor and thermometer, as well as an oxygen saturation monitor. I accept the Claimant’s evidence that all of these bits of equipment were also available, as “spares” at the Respondent’s premises, and also, that owing to the Covid-19 pandemic, that when working at the Covid-19 station, she would use the Respondent’s equipment.[36]The Respondent provided IT and telephony equipment, in order for the Claimant to take notes and access patient records. There was also some specialist equipment, such as a paediatric oxygen probe, that was available for the Claimant to use.[37]The Claimant described her work, which I accept, for the Respondent as that of an “autonomous GP”. The focus of the Claimant’s work (when not working in the telephone triage department) was on seeing patients. The Respondent provided a room for her, and she would see patients between the hours she had been booked. If any appointments overran, to the extent that there were still patients waiting to be seen at the end of the Claimant’s shift, she was under no obligation to stay beyond her booked time.[38]I find that the Claimant was principally an autonomous GP when working at the Cardiff Royal Infirmary, both in the Covid-19 role and the more general role. Her responsibilities changed when undertaking the Triage and 24/7 Triage roles, in that she would provide advice and guidance to other professional practitioners. This was in particular for the 24/7 Triage role, which I accept as per Dr Le Maitre’s evidence, meant that the Claimant was the point of contact, as the Senior Practitioner, to field a range of queries from 999 call handlers, nurses or other medical staff about patient care.[39]I prefer Dr Le Maitre’s evidence as to the extent of the Claimant’s responsibilities in the 24/7 Triage role, against the evidence of the Claimant. The Claimant characterised this as supervision of other staff, in a managerial sense. From the evidence I have heard and read, I do not accept that the Claimant was the de facto line manager of these staff. Rather, the Claimant was, as the Senior Practitioner, assisting others to provide urgent primary medical care services, in line with Schedule 2 of the Agreement,[40]Part of the Claimant’s main duties, per Schedule 2 of the Agreement was defined as: On commencement of each shift to have enquired with the relevant on duty manager the details of any health alerts/cascades which may have been issued[41]There are multiple examples of these health alerts and cascades, such as [118] (briefing note re: clotting events after the Astra Zenica Covid-19 vaccine), [116] (Welsh Government guidance re: new Covid-19 variant circa February 2021) and [133] (Seasonal Influenza Guidance, circa January 2022 from Welsh Government). I accept the Respondent was the recipient of this guidance from various sources, and would cascade it as appropriate, so that the Claimant, in her role as an OOH GP, received the guidance, etc that she was meant to receive as per her role.[42]The Claimant characterises this as educational material, and states that she was expected to review and action these at times when she was not at work. However, this is contrary to the Agreement, which certainly infers that time in the shift was available for reading such updates.[43]One of the difficulties I have with the Claimant’s evidence around this issue is the extent that she actually read all of these updates outside of working hours in her OOH role. Since the Claimant has been less than transparent around the other GP type roles she was performing, both for the Respondent and other Health Boards, it is logical to conclude that she would have had the same information cascaded to her in those roles. Some of these positions, being salaried roles (such as the Clinical Director) would have meant that the Claimant would in all likelihood have read these documents during “working time” in other roles.[44]In any event, I reject the Claimant’s contention that these cascade information documents, as well as internal policy and procedure documents circulated to her during 2021-2023 imposed a requirement or mandated her to do anything outside of working time. None of the examples that she refers to at §54 or §70 of her witness statement indicated that she was so required, or requested that she acknowledge or confirmed that she had read and understood the documents. Indeed, there is no claim by the Claimant for time spent reading such documents to count as “working time”.[45]One aspect of the evidence where there appears to be no disagreement is the subject of indemnity insurance. The Respondent offered free indemnity cover via the Welsh Risk Pool, which the Claimant confirmed in her evidence meant that she paid a lower premium for her own indemnity.[46]It is further agreed evidence that the Claimant’s last shift performed under the Consultancy Agreement was 18th September 2021. However, as per the list of issues, what is firmly in dispute is when the Consultancy Agreement terminated, as set out in the List of Issues.[47]I have referred to the termination clauses in the Agreement above, and neither party is claiming that any of these provisions apply (it is not suggested for example that the Respondent was entitled to terminate the Agreement without notice). Rather, the Respondent is saying that because the Claimant did not work a further shift for one year after 18th September 2021, she was “archived”, which effectively terminated the contract.[48]The term “archived” in this context means that the individual had been removed from the Respondent’s list of active OOH GP providers, and if they wanted to work a further shift, they would need to go through the induction process again. Ms James told the Tribunal that this was different from a termination (her exact words were “not necessarily a termination”). The reason for archiving was, I accept, to ensure that the GP was up to date with relevant policies and procedures, as well as a further opportunity to check that the GP remained eligible and fit to practice (via obtaining up to date references).[49]The Claimant was first contacted by Ms Davie about remaining as part of the OOH Service on 8th March 2022 [187]. I didn’t hear evidence from Ms Davie, and as above, can only give her statement limited weight, but this email (and Ms Davie’s explanation) is uncontroversial and was simply a reminder, rather than any attempt at varying or terminating the contract. Likewise the Claimant’s response of “Is it possible to remain on the books indefinitely? I may occasionally pick up a shift in the future” has no impact.[50]On 9th November 2022, Ms Davie wrote to the Claimant again, highlighting that the Claimant had not worked an OOH shift for some time, and that she would be removed from the Respondent’s books if “no shifts are booked before the new year” [197]. The Claimant replied the following day indicating that she would like to remain “on the Cardiff OOH staff bank”, to which Ms Davie informed her that this was possible but reiterating “we do require a shift to be picked up before the new year to keep this active”.[51]I do not accept the Respondent’s position that the Claimant was archived after a year of inactivity. If this was the case, then Ms Davie’s communications in November 2022 make no sense since the Claimant must have still been “on the books” (i.e. the Agreement was still in place) in November 2022. Further, if the Claimant had been archived, she would not have been invited to book a shift “before the new year” – rather Ms Davie would have told her that in order to book a further shift, she would need to repeat the application and induction process.[52]In fact, the Claimant did not book a further shift before the end of 2022, but continued to receive communications, including cascaded information, via the OOH Mailing List (an example is 17th February 2022 [199]). Although not appearing in the list of issues, the Respondent submits that by not undertaking a further shift as requested, the Claimant’s contract must have terminated on or around 1st January 2022 in accordance with Ms Davie’s communication.[53]I do not find that the Claimant’s contract terminated at this point, or that Ms Davie’s emails on 9th and 11th November 2022 could be construed as a notice of termination. Whilst Ms Davie’s communicated position was conditional – work a further shift or the contract will be terminated, I find that the reference to “before the new year” did not give a fixed date of termination and therefore lacked certainty, given that the Agreement required “one month’s prior written notice” which denotes a fixed end point for when notice expires.[54]The fact that the Claimant continued to receive emails in 2023 in the same manner that she had done prior to November 2022 supports this conclusion, as does the fact that the Claimant was able to request to book a shift via Rotamaster in September 2023 – I find that neither of these things would have happened if the Agreement had actually been terminated due to the Claimant not booking a shift before 31st December 2022.[55]The Claimant continued not to request any bookings with the Respondent via the OOH Service during the majority of 2023. On 15th September 2023, the Respondent wrote to all OOH GPs, giving them notice that the Consultancy Agreement would terminate at 0800hrs on 1st November 2023, and anyone wishing to continue providing services via CAV 24/7 would be required to sign a new Consultancy Agreement (referred to as the General Medical Practitioner Consultancy Agreement 2023).[56]On 19th September 2023, the Claimant emailed Ms Davie [248] about a shift showing as vacant on Rotamaster on 14th October 2023. The Claimant was asking about whether the shift could be performed over different hours than advertised, but this was not possible. The Claimant instead requested to book a Triage shift on 27th October 2023, which was approved by Ms Davie the same day [223].[57]At [260] is a copy of on audit from Rotamaster for the 27th October 2023 shift. It shows Ms Davie confirming the booking at 17:44:57 on 19th September 2023, and then cancelling the shift at 16:57:40 the following day. I accept the Claimant’s evidence that she did not receive notification from Rotamaster of this cancellation. However she was told about the cancellation by Ms Davie on 18th October 2023 [245]. The reason given was: It seems because you have not worked for us in over a year, we have archived you and because of this you will need to go through enrolment again. We have had a lot of changes in this time, so a new induction would be needed, but I will check as to what extent we would need to re-enrol. You may just need a reference check[58]Again, I am not persuaded that the email from Ms Davie on 18th October 2023 was notice of termination, or confirmation that the contract had been terminated – indeed, it is further evidence that the Agreement had not terminated on either 21st September 2021 or 21st September 2022, since the Respondent was indicating a willingness for the Claimant to conduct further work (prior to the global termination of the agreement on 1st November 2023) pending the Claimant providing further information. The Agreement did terminate therefore at 0800hrs on 1st November 2023.[59]The Claimant contacted ACAS to commence Early Conciliation on 24th October 2023 and was issued a certificate by ACAS on 5th December 2023. She presented her ET1 on 21st December 2023.
The Law
[60]s.230(2) and (3) ERA 1996 states: 230 Employees, workers etc. (2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing. (3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)— (a) a contract of employment, or (b)any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;[61]A worker who falls under the definition of s.230(3)(b) ERA 1996 is referred to in the case law as a “Limb B worker”. In Byrne Brothers v Baird [2002] IRLR 96, the EAT provided guidance as to what a Limb B worker might entail. At paragraph 17 of the judgment: We were referred to no authority giving guidance on that question; and we accordingly spell out our approach to it in a little detail, as follows:(1) We focus on the terms "[carrying on a] business undertaking" and "customer" rather than "[carrying on a] profession" or "client". Plainly the Applicants do not carry on a "profession" in the ordinary sense of the word; nor are Byrne Brothers their "clients".(2) "[Carrying on a] business undertaking" is plainly capable of having a very wide meaning. In one sense every "self-employed" person carries on a business. But the term cannot be intended to have so wide a meaning here, because if it did the exception would wholly swallow up the substantive provision and limb (b) would be no wider than limb (a). The intention behind the regulation is plainly to create an intermediate class of protected worker, who is on the one hand not an employee but on the other hand cannot in some narrower sense be regarded as carrying on a business. (Possibly this explains the use of the rather odd formulation "business undertaking" rather than "business" tout court; but if so, the hint from the draftsman is distinctly subtle.) It is sometimes said that the effect of the exception is that the Regulations do not extend to "the genuinely self-employed"; but that is not a particularly helpful formulation since it is unclear how "genuine" self-employment is to be defined.(3) The remaining wording of limb (b) gives no real help on what are the criteria for carrying on a business undertaking in sense intended by the Regulations – given that they cannot be the same as the criteria for distinguishing employment from self- employment. Possibly the term "customer" gives some slight indication of an arm's- length commercial relationship – see below – but it is not clear whether it was deliberately chosen as a key word in the definition or simply as a neutral term to denote the other party to a contract with a business undertaking.(4) It seems to us that the best guidance is to be found by considering the policy behind the inclusion of limb (b). That can only have been to extend the benefits of protection to workers who are in the same need of that type of protection as employees stricto sensu - workers, that is, who are viewed as liable, whatever their formal employment status, to be required to work excessive hours (or, in the cases of Part II of the Employment Rights Act 1996 or the National Minimum Wage Act 1998, to suffer unlawful deductions from their earnings or to be paid too little). The reason why employees are thought to need such protection is that they are in a subordinate and dependent position vis-à-vis their employers: the purpose of the Regulations is to extend protection to workers who are, substantively and economically, in the same position. Thus the essence of the intended distinction must be between, on the one hand, workers whose degree of dependence is essentially the same as that of employees and, on the other, contractors who have a sufficiently arm's-length and independent position to be treated as being able to look after themselves in the relevant respects.(5) Drawing that distinction in any particular case will involve all or most of the same considerations as arise in drawing the distinction between a contract of service and a contract for services – but with the boundary pushed further in the putative worker's favour. It may, for example, be relevant to assess the degree of control exercised by the putative employer, the exclusivity of the engagement and its typical duration, the method of payment, what equipment the putative worker supplies, the level of risk undertaken etc. The basic effect of limb (b) is, so to speak, to lower the pass-mark, so that cases which failed to reach the mark necessary to qualify for protection as employees might nevertheless do so as workers.[62]In Ready Mixed Concrete-v-Ministry of Pensions [1968] 2QB 497, McKenna J set out the requirements that must be satisfied in order for a contract of service to exist. At 515: I must now consider what is meant by a contract of service. A contract of service exists if these three conditions are fulfilled.(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master.(iii) The other provisions of the contract are consistent with its being a contract of service. The Court later added (516-7) An obligation to do work subject to the other party's control is a necessary, though not always a sufficient, condition of a contract of service. If the provisions of the contract as a whole are inconsistent with its being a contract of service, it will be some other kind of contract, and the person doing the work will not be a servant. The judge's task is to classify the contract (a task like that of distinguishing a contract of sale from one of work and labour). He may, in performing it, take into account other matters besides control.[63]It is well established that how the parties define themselves in any written contract is of little relevance, in the sense that it should not be taken at face value. Per Autoclenz Ltd v Belcher and Others [2011] UKSC 41, the question for any judge in this situation is “what was the true agreement between the parties?” (see Autoclenz at [29]).[64]Two further points as to the nature of the “true agreement” can be taken from Autoclenz. Firstly, in finding what the true agreement is, I do not necessarily need to find that the contract was a sham (indeed, Autoclenz expressly held that this was not required. Secondly, when examining whether the written agreement is an accurate reflection of the agreement, I must take into account the respective bargaining powers of the parties at the point the contract was entered into (Autoclenz at [35]): So the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part.[65]This principle in Autoclenz was clarified and expanded upon by the Supreme Court (per Lord Leggatt) in Uber BV v Aslam [2021] UKSC 5. These are particularly helpful in clarifying the Tribunal’s remit as to the issue of the written agreement. Firstly, [67] – [70] of Uber:[68]The judgment of this court in the Autoclenz case made it clear that whether a contract is a “worker’s contract” within the meaning of the legislation designed to protect employees and other “workers” is not to be determined by applying ordinary principles of contract law such as the parol evidence rule, the signature rule and the principles that govern the rectification of contractual documents on grounds of mistake. Not only was this expressly stated by Lord Clarke but, had ordinary principles of contract law been applied, there would have been no warrant in the Autoclenz case for disregarding terms of the written documents which were inconsistent with an employment relationship, as the court held that the employment tribunal had been entitled to do. What was not, however, fully spelt out in the judgment was the theoretical justification for this approach. It was emphasised that in an employment context the parties are frequently of very unequal bargaining power. But the same may also be true in other contexts and inequality of bargaining power is not generally treated as a reason for disapplying or disregarding ordinary principles of contract law, except in so far as Parliament has made the relative bargaining power of the parties a relevant factor under legislation such as the Unfair Contract Terms Act 1977.[69]Critical to understanding the Autoclenz case, as I see it, is that the rights asserted by the claimants were not contractual rights but were created by legislation. Thus, the task for the tribunals and the courts was not, unless the legislation required it, to identify whether, under the terms of their contracts, Autoclenz had agreed that the claimants should be paid at least the national minimum wage or receive paid annual leave. It was to determine whether the claimants fell within the definition of a “worker” in the relevant statutory provisions so as to qualify for these rights irrespective of what had been contractually agreed. In short, the primary question was one of statutory interpretation, not contractual interpretation.[70]The modern approach to statutory interpretation is to have regard to the purpose of a particular provision and to interpret its language, so far as possible, in the way which best gives effect to that purpose. In UBS AG v Revenue and Customs Comrs [2016] UKSC 13; [2016] 1 WLR 1005, paras 61- 68, Lord Reed (with whom the other Justices of the Supreme Court agreed) explained how this approach requires the facts to be analysed in the light of the statutory provision being applied so that if, for example, a fact is of no relevance to the application of the statute construed in the light of its purpose, it can be disregarded. Lord Reed cited the pithy statement of Ribeiro PJ in Collector of Stamp Revenue v Arrowtown Assets Ltd (2003) 6 ITLR 454, para 35: “The ultimate question is whether the relevant statutory provisions, construed purposively, were intended to apply to the transaction, viewed realistically.” 66. Then, at [77] – [78] of Uber:[77]This point can be illustrated by the facts of the present case. The Services Agreement (like the Partner Terms before it) was drafted by Uber’s lawyers and presented to drivers as containing terms which they had to accept in order to use, or continue to use, the Uber app. It is unlikely that many drivers ever read these terms or, even if they did, understood their intended legal significance. In any case there was no practical possibility of negotiating any different terms. In these circumstances to treat the way in which the relationships between Uber, drivers and passengers are characterised by the terms of the Services Agreement as the starting point in classifying the parties’ relationship, and as conclusive if the facts are consistent with more than one possible legal classification, would in effect be to accord Uber power to determine for itself whether or not the legislation designed to protect workers will apply to its drivers.[78]This is, as I see it, the relevance of the emphasis placed in the Autoclenz case (at para 35) on the relative bargaining power of the parties in the employment context and the reason why Lord Clarke described the approach endorsed in that case of looking beyond the terms of any written agreement to the parties’ “true agreement” as “a purposive approach to the problem”. 67. Whilst Ready Mixed Concrete refers to an obligation for personal service to be a necessity of a contract of service, the full judgment of MacKenna J recognised that a finding of obligation would not always be sufficient to establish such a contract. It is easy to become fixated on this particular factor, and prioritise it (whether the existence or lack thereof) over other factors. To do so would be an error, and there is no “running through items on a checklist” to reach a determination, as per Hall v Lorimer [1994] IRLR 174 (in fact, upholding the dicta of Mummery J in Hall v Lorimer [1992] STC 599). It is helpful to set out Mummery J’s judgment, cited by the Court of Appeal, in full: In order to decide whether a person carries on business on his own account it is necessary to consider many different aspects of that person's work activity. This is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another. The process involves painting a picture in each individual case. 68. Mutuality of obligation is relevant to the question whether a contract exists at all. It is also relevant to the question of whether any such contract is a contract of service or a worker contract as explained by Elias J(P) in Stephenson v Delphi Diesel Systems Ltd [2003] ICR 471 (approved by the Court of Appeal in Quashie v Stringfellows [2013] IRLR 99) (11) The significance of mutuality is that it determines whether there is a contact in existence at all. The significance of control is that it determines whether, if there a contract in place, it can properly be classified as a contract of service, rather than some other kind of contract. (12) The issue of whether there is a contract at all arises most frequently in situations where a person works for an employer, but only on a casual basis from time to time. It is often necessary then to show that the contract continues to exist in the gaps between the periods of employment. Cases frequently have had to decide whether there is an over-arching contract or what is sometimes called an "umbrella contract" which remains in existence even when the individual concerned is not working. It is in that context in particular that courts have emphasised the need to demonstrate some mutuality of obligation between the parties but, as I have indicated, all that is being done is to say that there must be something from which a contract can properly be inferred. Without some mutuality, amounting to what is sometimes called the "irreducible minimum of obligation", no contract exists. (13) The question of mutuality of obligation, however, poses no difficulties during the period when the individual is actually working. For the period of such employment a contract must, in our view, clearly exist. For that duration the individual clearly undertakes to work and the employer in turn undertakes to pay for the work done. This is so, even if the contract is terminable on either side at will. Unless and until the power to terminate is exercised, these mutual obligations (to work on the one hand and to be paid on the other) will continue to exist and will provide the fundamental mutual obligations. (14) The issue whether the employed person is required to accept work if offered, or whether the employer is obliged to offer work if available is irrelevant to the question whether a contract exists at all during the period when the work is actually performed. The only question then is whether there is sufficient control to give rise to a conclusion that the contractual relationship which does exist is one of a contract of service or not." 69. In the CoA decision in Quashie v Stringfellows [2013] IRLR 99, Elias LJ clarified what he meant at paragraph 14 in Stephenson: On reflection, it is clear that the last sentence of paragraph 14 is too sweeping. Control is not the only issue. Even where the work-wage relationship is established and there is substantial control, there may be other features of the relationship which will entitle a tribunal to conclude that there is no contract of employment in place even during an individual engagement. O'Kelly and Ready Mixed provide examples. 70. Langstaff J (P) in Cotswold Developments v Williams [2006] IRLR 181 summarised the correct approach to this issue as follows (at [61]): …the central questions are:(a) was there one contract or a succession of shorter assignments?(b) if one contract, is it the natural inference from the facts that the Claimant agreed to undertake some minimum, or at least some reasonable, amount of work for Cotswold in return for being given that work, or pay?(c) if so, was there such control as to make it a contract of employment so as to give rise to rights of unfair dismissal, as well as a right to holiday pay?(d) if there was insufficient control, or any other factor, negating employment, whether the Claimant was nonetheless obliged to do some minimum (or reasonable) amount of work personally? 71. Turning then to the question of control, Ready Mixed Concrete defined the element of control as (at 515F): Control includes the power of deciding the thing to be done, the way in which it shall be done, the means to be employed in doing it, the time when and the place where it shall be done. All these aspects of control must be considered in deciding whether the right exists in a sufficient degree to make one party the master and the other his servant. The right need not be unrestricted. 72. In Montgomery v Johnson Underwood Limited [2001] EWCA Civ 318 (at [19]), the Court of Appeal stated that: [Mackenna J] had well in mind that the early legal concept of control as including control over how the work should be done was relevant but not essential. Society has provided many examples, from masters of vessels and surgeons to research scientists and technology experts, where such direct control is absent. In many cases the employer or controlling management may have no more than a very general idea of how the work is done and no inclination directly to interfere with it. However, some sufficient framework of control must surely exist. A contractual relationship concerning work to be carried out in which the one party has no control over the other could not sensibly be called a contract of employment 73. The phrase “a sufficient framework of control” was recently held by Lord Richards in Commissioners for His Majesty’s Revenue and Customs v Professional Game Match Officials Ltd [2024] UKSC 29 as the applicable test (at [66]). Lord Richards went on to set out an example of such a “sufficient framework” beyond the easily recognised concept of direct instructions given to individuals with reference to the Supreme Court decision in Uber (specifically [93] – [101] of Uber). 74. However, again, presence or absence of control (or subordination) is not determinative. Referring to Cotswold, as well as Hospital Medical Group Limited v Westwood [2013] ICR 415 and James v Redcats (Brands) Limited [2007] ICR 1006, Lady Hale, giving the leading judgment in Clyde and Co LLP v Bates van Winkelhof [2014] UKSC 32 stated at para [39]: I agree with Maurice Kay LJ that there is “not a single key to unlock the words of the statute in every case”. There can be no substitute for applying the words of the statute to the facts of the individual case. There will be cases where that is not easy to do. But in my view they are not solved by adding some mystery ingredient of “subordination” to the concept of employee and worker. The experienced employment judges who have considered this problem have all recognised that there is no magic test other than the words of the statute themselves. As Elias J recognised in Redcats, a small business may be genuinely an independent business but be completely dependent upon and subordinate to the demands of a key customer (the position of those small factories making goods exclusively for the “St Michael” brand in the past comes to mind). Equally, as Maurice Kay LJ recognised in Westwood, one may be a professional person with a high degree of autonomy as to how the work is performed and more than one string to one’s bow, and still be so closely integrated into the other party’s operation as to fall within the definition. As the case of the controlling shareholder in a company who is also employed as chief executive shows, one can effectively be one’s own boss and still be a “worker”. While subordination may sometimes be an aid to distinguishing workers from other self-employed people, it is not a freestanding and universal characteristic of being a worker. 75. The Claimant brings claims for accrued but untaken holiday pay under two separate parts of the legislation. Firstly, Reg 14 WTR 1998 (as in force from 26th March 2020, it having been amended on 1st January 2024 ,which does not apply to this case), and secondly as an unauthorised deduction of wages under s.13 ERA 1996. 76. s.23(4A) ERA 1996 states: An employment tribunal is not (despite subsections (3) and (4)) to consider so much of a complaint brought under this section as relates to a deduction where the date of payment of the wages from which the deduction was made was before the period of two years ending with the date of presentation of the complaint. 77. I also note that s.23(3A), dealing with extension of time limits to facilitate conciliation before institution of proceedings does not apply to s.23(4A). The sums the Claimant is claiming also do not fall under the exception at s.23(4B) and s.27(1)(b)-(j) 78. In respect of the WTR claim, in Pimlico Plumbers Ltd v Smith (No 2) [2022] IRLR 347, the Court of Appeal clarified the position where a worker has been constantly denied the ability to take holiday by the employer and wants to bring a claim for all accrued holiday on termination of the contract, in light of the uncertainty post King v Sash Windows Workshop [2018] IRLR 142. At [102] and [103], per Simler LJ: 102. In conclusion, in my judgment the appeal should succeed. The language of art 7(1), art 31 of the Charter, and King, establishes that the single composite right which is protected is the right to 'paid annual leave', for the reasons given above. If a worker takes unpaid leave when the employer disputes the right and refuses to pay for the leave, the worker is not exercising the right. Although domestic legislation can provide for the loss of the right at the end of each leave year, to lose it, the worker must actually have had the opportunity to exercise the right conferred by the WTD. A worker can only lose the right to take leave at the end of the leave year (in a case where the right is disputed and the employer refuses to remunerate it) when the employer can meet the burden of showing it specifically and transparently gave the worker the opportunity to take paid annual leave, encouraged the worker to take paid annual leave and informed the worker that the right would be lost at the end of the leave year. If the employer cannot meet that burden, the right does not lapse but carries over and accumulates until termination of the contract, at which point the worker is entitled to a payment in respect of the untaken leave. 103. A claim to payment for all the leave which Mr Smith took but for which he was not paid in breach of his right to paid annual leave was inherent in Mr Smith's pleaded case. It follows that the tribunals below erred in law in deciding otherwise. Moreover, this claim was in time because he was denied the opportunity to exercise the right to paid annual leave throughout his engagement with the respondent. The respondent could not discharge the relevant burden. The right did not therefore lapse but carried over and accumulated until termination of the contract, at which point Mr Smith was and remains entitled to a payment in respect of the unpaid leave.[79]Whilst Mr Smith was unable to claim this sum under Reg 14 (because the CoA held that he had not pleaded such a claim), this is a potential mechanism open to the Claimant here. One further point to note is that both Pimlico (No2) and King were dealing with Reg 13 WTR entitlement only – i.e. 4 weeks, and not the additional 1.6 weeks afforded by Reg 13A. Discussions and Conclusions[80]I will start with the Claimant’s contention, both in her evidence and closing submissions to me, that the Consultancy Agreement was a “sham”. I do not agree with the Claimant’s characterisation of this document as a sham agreement. Whilst it is correct that the statement in the Agreement as to the Claimant being self-employed is irrelevant (at least for my assessment and findings), and the Agreement did not refer to the Claimant being paid via PAYE (indeed, although not explicit, it certainly suggests that the Claimant would be paid gross of tax and be responsible for accounting for this with HMRC), broadly, the terms of the Agreement reflect what actually happened on the ground.[81]Assessing both the Consultancy Agreement and what actually happened for the duration of the Agreement, I conclude that there was no obligation for the Claimant to perform a minimum amount of work at any point during the contract, nor was there an obligation for the Respondent to offer a minimum amount of work.[82]In particular, I do not agree with the Claimant that there was any requirement on the Claimant to read or digest any of the documents, policy updates or urgent alerts that were circulated to her in order to continue in her role. In all of the documents that I have been referred to, the Claimant was never told to acknowledge or confirm that she had read them, and there was no other way of the Respondent tracking such information.[83]I also do not find that the Respondent’s informal policy of “archiving” placed any obligation on the Claimant to do a minimum amount of work. As I have found, archiving was not the same as terminating the contract. All that archiving meant was that the GP would have to re-enrol, in terms of some basic training, familiarisation with policies and give updated references before booking a further shift.[84]Archiving is therefore not the same as the Agreement being terminated due to not working a shift in a certain period. The effect of archiving was to require the Claimant to do a non-onerous task before being allowed to book shifts, and since the Respondent always maintained a discretion not to authorise a booking request even for non-archived (or active) GPs on the Respondent’s books, the prospect of archiving was of minimal consequence.[85]I therefore find that there was no overarching contract within the meaning of s.230(3) ERA 1996 for the duration of the Consultancy Agreement. This is because there was no obligation to provide a minimum amount of work (on either side), nor did the Respondent have any control over the Claimant during this period. She was free to work elsewhere (and indeed, did so), and, subject to the prospect of archiving, was free to request work from the Respondent, with no obligation that the Respondent accept that request, at any stage.[86]However, the position is different once the Claimant had a shift request accepted. I find that there was, certainly at the point 14 days prior to the shift commencing, an obligation on the Claimant to do the work personally. This is because I find that in practice, the substitution clause would be unlikely to be used – the Claimant had no way of contacting other OOH GPs (beyond if she happened to have their contact details), and no way of knowing more widely if a suitably qualified GP was registered with the Respondent’s OOH service.[87]The Respondent also, through the various penalty clauses, sought to prevent the Claimant from cancelling within 14 days. This is not a criticism (indeed, it is not the Tribunal’s place to form any such opinion), but it imposed a reduction in pay, as well as a further deduction in the event of the Respondent incurring a financial loss on any future pay. I appreciate that the Respondent’s evidence was that these clauses were unlikely to be used, since the Respondent would just choose not to accept bookings from a GP who cancelled at short notice, but it did create a level of control by the Respondent over the Claimant.[88]Therefore a combination of the lack of possibility to substitute (and even then, albeit quite understandably, only with permission of the Respondent), and the penalty clauses in terms of a deduction from future payments of any loss incurred by the Respondent, plus a penalty of one hour’s pay, meant that, from 14 days prior to the shift, the Claimant was required to undertake the work personally, and if she did not, there were adverse consequences to her.[89]Once the Claimant attended a shift, I find that she was a worker within the meaning of s.230(3)(b) ERA 1996. She was obliged to work personally, and was paid in return for that work. Whilst an autonomous GP, in that she did not fit naturally into a reporting or management structure, this did not (considering Montgomery) mean there was no control. Rather, the Respondent exercised control through the 1% audit system, which, if the Claimant was found lacking in some respect, would subject her to a type of capability process, which afforded her a period for remedial improvement, or if there was no improvement, dismissal. In terms of supervision and control through the 1% audit, the situation is not dissimilar to the review and monitoring system in Uber (see [97] in Uber).[90]Whilst elements of control, both in terms of the 1% audit and also in a scenario where there was a complaint by a patient, are perhaps better defined as control through professional regulation, these were still elements of control that the Respondent had over the Claimant (and, as the Court of Appeal held in Uber [2018] EWCA Civ 2748, affirmed by the Supreme Court, control by the Respondent, even if in accordance with a duty imposed by statute or regulation is still control for the purposes of s.230).[91]As well as the elements of control and obligation for personal service, I am satisfied that all the other elements of the contract are consistent with it being a contract of service. The Respondent paid the Claimant via PAYE, they provided (at no cost to the Claimant) medical equipment, office space and an electronic device for accessing the Respondent’s systems. Whilst the Claimant had to bring some basic bits of equipment for a shift, these are common to all GPs, and did not require any investment by her.[92]There was no element of financial risk to the Claimant once a shift was accepted, and there was also no particular scope for making a profit. Rates of pay were set by the Respondent and non-negotiable, and whilst the Claimant could apply for shifts which attracted a higher hourly rate of pay, these rates were set because of them being anti-social hours (such as over the Christmas period) or as an incentive to book multiple shifts at once. When working for the Respondent as an OOH GP, the Claimant could only see patients of the Respondent, and her pay was not tied to her productivity or number of patients seen in a session.[93]In light of these findings, and reminding myself per Bates van Winkelhof that there can be “no substitute for applying the words of the statute to the facts of the case” I am satisfied that the Claimant was, during the booked sessions when she was working as an OOH GP was a Limb B worker.[94]In essence, she was a “gig worker”, and so the Tribunal also finds, again, applying the language of the statute, that when the Claimant was not performing work as part of a booked shift, she was not a worker, and that the Consultancy Agreement was a framework agreement that governed a series of short, ad hoc assignments.[95]Ms Dobbie argued that given the Claimant’s educational and professional background, as compared to Claimants in cases such as Uber and other “gig worker” type cases, the factor of inequality of bargaining power (and therefore the purposive approach taken by the Courts in Uber) were less likely to apply here, since the Claimant, having read and understood (or at least, being capable of reading and understanding) the terms of the agreement, would have entered into the contract knowing the consequences of it. This was, Ms Dobbie said, all the more prevalent given that the Claimant worked across several contracts for several different Welsh Health Boards, at least one (being Locum GP work for the Respondent) did pay holiday pay.[96]Even making allowances for the Claimant’s dyslexia, I agree with Ms Dobbie that the Claimant is in a different position re: contracting with the Respondent than many “gig workers” before the Employment Tribunal. However, her ability to understand the contractual terms is not the only factor here – in my judgment, the fact that the Respondent is one of 7 NHS Wales Local Health Boards, is publically funded, and is (I take Judicial Notice of) one of the largest employers of registered medical practitioners in Wales, are all factors which go to the inequality of bargaining power. The Claimant was not in a position to negotiate, for example, for holiday pay. Such inequality does not mean, in the context of a publicly funded organisation, that the mere fact that the people it is contracting with understand the terms they are agreeing to, that such an organisation should be able to draft terms to avoid statutory rights.[97]I make clear I am not suggesting, and indeed it was not suggested by the Claimant that the Respondent has deliberately done this, but, applying Autoclenz, Uber and the purposive approach, allows me to look beyond the written agreement and reach the finding that she was a Limb B worker.[98]What does this mean then for the Claimant’s claims? Firstly, as a worker, when she was working, she had entitlement to annual leave under Reg 13 WTR 1998. For the purposes of my findings now, I do not need to determine exactly how much leave she would have accumulated over her booked shifts.[99]The Respondent failed to pay the Claimant for her annual leave, in the sense that she was not permitted to take any leave and she was not paid for any leave. It is established law that a failure to pay accrued but untaken annual leave under Reg 14 WTR amounts to an authorised deduction of wages under s.13 ERA 1996 – see HMRC v Stringer [2009] IRLR 677.[100]So the question then is, when did the Claimant’s entitlement under Reg 14(1) and (2) crystallise? The answer is in the statute. Reg 14(1)(a) refers to “where a worker’s employment is terminated during the course of his leave year”. The reference to “employment” is, per Reg 2 “means employment under his contract”.[101]So, does the Claimant’s entitlement under Reg 14 crystallise at the end of her last worked shift (i.e. 18th September 2021) or at 0800hrs on 1st November 2023? In my judgment, it is the former. This is because the finding of the Tribunal is that the Consultancy Agreement was not a contract of service. Effectively, each time the Claimant worked a shift, she was working under a short, temporary contract. There was no overarching applicable contract between the parties.[102]Therefore a sum in consideration for accrued but untaken holiday pay should have been paid to the Claimant in the next pay run – so 21st October 2021. Even before considering whether an extension of time to present the claim under s.23(4) should be granted, the claim is defeated by s.23(4A) on the basis of jurisdiction. I cannot, notwithstanding s.203(4), consider a complaint for unauthorised deduction of wages where the deduction was made prior to 21st December 2021. In those circumstances, I do not have jurisdiction to consider such a claim, and so the wages claim is dismissed.[103]Applying the same analysis to the Reg 14 WTR claim results in a similar outcome for the Claimant. I have considered Pimlico (No2) and King, but the principle in these cases of allowing the Worker Claimant to roll over year on year their holiday entitlement in circumstances where the three stage test (of Simler LJ at [102] in Pimlico) is met does not apply here. The reason for this is because the Reg 14 claim crystalises at the termination of the contract, and my finding is that the contract terminated at the conclusion of the shift on 18th September 2021.[104]Practically, the Claimant would not have had to present a separate claim for a Reg 14 payment at the end of each shift, because, subject to s.23(4A) ERA, she would have been able to bring a claim for a series of deductions under s.13 ERA and so this finding does not offend public policy grounds (see Byrne Bros at [17] and Uber at [71]. Had she acted promptly, the law would have afforded her a remedy.[105]I further decline to extend time under Reg 30(2) on the basis that it was reasonably practicable for the Claimant to have presented her claim earlier. It is of particular importance in my judgment that the Claimant worked as a Locum GP for the Respondent during September 2021, at the time of her last OOH shift, and, as per her payslip, she was paid a sum in lieu of holiday pay. She was therefore on notice that the Respondent was treating her OOH work differently, and in effect, denying her holiday pay. Had she made any such enquiries, or properly applied her mind to the issue on or shortly after 21st October 2021 (when she received her payslip) she could have presented a claim in time, or shortly thereafter. It was therefore reasonably practicable of her to present her claim earlier than 27th December 2023.[106]In reaching this decision, I have given little weight to the factor that the Claimant had no route to raise a grievance or concern via an official mechanism. I accept Ms James’ evidence that had such a grievance been raised, the Respondent would have followed a process similar to the one afforded to employees within the Respondent’s grievance procedure. However, that is of scant relevance – the Claimant is an educated and articulate professional, who would have been able to contact either Ms Davie, Ms James or Dr Le Maitre about concerns as to her legal rights (whether or not she thought of them in this sense at the time). The lack of a formal grievance mechanism was not a bar to her doing this.[107]If I am wrong as to the effect of the Consultancy Agreement, and that the Reg 14 right only crystallised on 1st November 2023, then in my judgment Pimlico v Smith (No2) can be distinguished from the present case. Whilst Pimlico was dealing with a Limb B worker, Mr Smith was working under an umbrella contract, in other words a contract which cast obligations on the worker during the periods where he worked on assignments. There was an ongoing prohibition by Pimlico on paying Mr Smith for his annual leave, all the while he continued to accrue such holiday entitlement.[108]In the present case, the last time the Claimant accumulated annual leave entitlement was 18th September 2021. There was no umbrella contract. I remind myself of the purpose of Article 7 of the EU Directive and the Working Time Regulations was, as summarised by Simler LJ: The underlying philosophy of the WTD, that it is necessary for the health and safety of workers that they should have a minimum entitlement actually to take paid leave, is reflected in the prohibition in art 7(2) on replacing paid annual leave with an allowance in lieu, save where the employment relationship comes to an end.[109]It is difficult to see how the Claimant’s health and safety, under the role she performed for the Respondent in the OOH service, was impacted in 2022 and 2023 by the failure to either allow her to take annual leave in 2020 or 2021. Whilst Pimlico (No2) states that there is a burden on the Respondent to encourage the worker to take such annual leave, it would be non-sensical in the context of a framework agreement for the Respondent to encourage the Claimant to take such annual leave over a 25 and a half month period during which the Claimant was performing no work for the Respondent, nor accruing further annual leave, and therefore requiring the protection of the WTR.[110]For all those reasons, the Claimant’s claims are dismissed. Postscript[111]This judgment was completed and sent for promulgation on 5th December 2024. I was then contacted by the Promulgation Team on 6th January 2025 to inform me that the judgment had yet to be promulgated, and was referred to correspondence received by the parties on 27th and 28th November 2024. It is regrettable that this correspondence was not referred to me at the time, when it could have been considered as part of my deliberations and not have further delayed sending the judgment to the parties.[112]In the correspondence, the Claimant took issue with what she perceived to be unjustified criticism of her by Ms Dobbie as to her credibility, and also Ms Dobbie’s arguments around the differences between the Claimant’s situation and the Claimants in cases such as Uber and Autoclenz.[113]It is unusual to receive written representations, unsolicited, after the conclusion of the case, but recognising that the Claimant is a litigant in person, and that the Respondent had the opportunity to respond to them, I have considered both parties submissions and can confirm that they have not impacted (and would not have changed) my judgment.[114]In particular, Ms Dobbie’s criticisms of the Claimant’s credibility was, as I have set out above, well-founded, and in no way linked to the Claimant’s dyslexia. Similarly, whilst I did not accept the Respondent’s arguments as to the respective bargaining positions of the parties and the purposive approach, I make clear that the Respondent was not seeking to conflate this line of legal analysis with the Claimant’s dyslexia. It was a perfectly proper argument to make (based on the relative differences in background, including education and English language skills) of the Claimants in Uber as opposed to highly skilled General Practitioners, such as the Claimant.[115]Finally, the Claimant make a startling and wholly unfounded allegation that the Respondent’s legal team had been “coaching the staff members who act on behalf of the Respondent” as part of this litigation. It goes without saying that this would be a gross breach of both Solicitor and Counsel’s professional regulatory obligations for them to have done so.[116]This is a most serious allegation for the Claimant to make, which was not put to either of the Respondent witnesses. Indeed, the Respondent decided not to even acknowledge or respond to this attack upon them in correspondence, but I wish to highlight it so that the Claimant is under no illusion of the seriousness that the Tribunal views her conduct, and that in the absence of any shred of evidence to support it, her assertion is fully rejected.