Dr J Payne-James and Others v Commissioner of Police of the Metropolis: 2206499/2021 and Others

EMPLOYMENT TRIBUNALS

Case No 2206499/2021

Between

(1) Dr J Payne-James (2) Dr C Capper (3) Dr K Fairhead (4) Dr P Forkuo (5) Dr P Green (6) Dr U SarkarClaimant

Commissioner of Police of the MetropolisRespondent

Before

Employment Judge Kenward

Date 2 December 2025

JUDGMENT

The Judgment of the Tribunal is that:(1) At all material times, each Claimant was not an employee of the Respondent at the relevant time within the meaning of Employment Rights Act 1996 section 230(1).

(2) At all material times, during the periods when undertaking duty shifts, each Claimant was a worker within the meaning of Employment Rights Act 1996 section 230(3)(b) but was not a worker within that meaning during the periods between duty shifts.

REASONS

[1]Each Claimant was, at all material times, a Forensic Medical Examiner (“FME”), which meant that, as medical practitioners, they provided custodial healthcare services to the Metropolitan Police.

[2]The Claimants brought Claims in the Employment Tribunal against both the Commissioner of Police of the Metropolis (the “Respondent”), and also against the Mayor’s Office for Policing & Crime (the “Second Respondent”), making various complaints on the basis of that they were employees for the purposes of the Employment Rights Act 1996 (“ERA 1996”). In the alternative, it was contended that they were workers for the purposes of the Employment Rights Act 1996.

[3]This hearing was listed for a public preliminary hearing to decide whether the Tribunal had jurisdiction to hear the Claimants’ various complaints against the Respondents. In the Amended Notice of Preliminary Hearing, the issues for determination were stated by Employment Judge Davidson as being as below.(1) Who was the correct Respondent to the Claimants’ Claims?

(2) Were the Claimants employed under a contract of employment within the meaning of ERA 1996 section 230(1)?

(3) If they were not employees as so defined, were they “limb b” workers within the meaning of ERA 1996 section 230(3)(b)?

[4]The Amended Notice of Preliminary Hearing further stated that “Case management orders may be made at the conclusion of the preliminary hearing”.

[5]Similar Claims had also been brought by 15 other Claimants so that there are a total of 21 Claimants.

[6]It was agreed that all of the 21 Claims gave rise to common or related issues of fact or law.

[7]By consent, pursuant to rule 36 of the Employment Tribunals Rules of Procedure 2013 (the “Tribunal Rules 2013”), the Tribunal ordered that:(1) the Claims of Dr J Payne-James, Dr C Capper, Dr K Fairhead, Dr P Forkuo, Dr P Green, and Dr U Sarkar (the “lead Claimants”) would proceed as lead cases (the “lead cases”);

(2) the Claims of the other Claimants (the “related cases”), which are listed in the Schedule at the end of this document, would be stayed pending the decision made by the Tribunal in the lead cases in respect of the common or related issues; and

(3) the decision made by the Tribunal in the lead cases, in respect of the common or related issues, shall be binding on the parties in the related cases, subject to the provisions of rule 36(2) and (3) of the Tribunal Rules 2013 (now rule 37(2) and (3) of the Employment Tribunal Procedure Rules 2024 (the “Tribunal Rules 2024”))

[8]The issue of the correct Respondent had ceased to be a live issue as a result of an e-mail from the Respondent dated 26 June 2023 to the effect that the Commissioner of the Police of the Metropolis was the correct Respondent in these proceedings. The e-mail requested that the Second Respondent be removed as a party and that the Claim against the Second Respondent be dismissed. On 2 February 2024, a Judgment was issued dismissing the Claims against the Mayor’s Office for Policing & Crime, on withdrawal, pursuant to rule 52 of the Tribunal Rules 2013.

[9]The preliminary hearing was listed for 8 days commencing on 6 November 2023. After dealing with preliminary matters on the first day, the remainder of that day was spent reading key documents identified by the parties. There was an agreed Core Bundle of 1140 pages as well as separate Bundles for each of the 21 Claimants. In total, the documentation in the Bundles amounted to approximately 18,000 pages.

[10]Evidence was then heard on 6, 7, 8, 9, 10 and 13 November 2023 but it was necessary to adjourn the hearing part heard to 1 and 2 February 2024 due the non-availability of a witness.

[11]The oral evidence in the case concluded on 1 February 2024. Written submissions were provided by the parties on 2 February 2024. A bundle of authorities was provided which was eventually updated so as to be 905 pages in length and to contain 49 case law authorities. The hearing was subsequently adjourned part heard for written submissions in reply to be provided and for oral submissions to be concluded on 20 March 2024. The case was also listed on 21 and 22 March 2024 in chambers (without the parties) for deliberation.

[12]On 20 March 2024, the Tribunal concluded hearing the oral submissions of the parties which supplemented the written submissions in reply which had been provided. The decision was reserved. The case remained listed on 21 March 2024 in chambers (without the parties), for the Tribunal to begin its deliberations in private as to the decision but was no longer listed on 22 March 2024 in chambers.

[13]An application was then made on behalf of the lead Claimants for further written submissions to be provided following the decision of the Supreme Court in Commissioners for His Majesty’s Revenue and Customs v Professional Game Match Officials Limited

[2024] UKSC 29

. This was on the basis that it was asserted that the decision of the Supreme Court “reinforces the general approach and application of the legal principles that the Claimants’ Counsel made in their submissions”. Although noting that the Respondent took issue with such an asserted suggestion. It was ordered that any further written submissions be provided by 10 October 2024 and any submissions in reply by 24 October 2024. Subsequently, both parties provided further written submissions by 10 October 2024 and written submissions in reply on 24 October 2024.

[14]I sincerely apologise for the delay in providing the Judgment and Reasons which has been caused by pressure of work. Background and proceedings

[15]The Claimants started providing custodial healthcare services to the Metropolitan Police at varying dates (the earliest date being 1979, the most recent 2016).

[16]Whilst there were earlier agreements, all of the Claimants signed a written agreement in either 2009 or 2014 or both.

[17]Each of the 2009 and 2014 contracts provides that it supersedes any prior agreement. Each provides that it is a contract pursuant to which services are provided by the FME as a self-employed contractor.

[18]As of 30 April 2021, these contracts were brought to an end.

[19]Early conciliation then took place with ACAS being notified of the prospective Claim on 29 July 2021 and the ACAS certificate being issued on 8 September 2021.

[20]Thereafter, an ET1 Form of Claim with attached Grounds of Claim was filed on 7 October 2021 on behalf of all 21 Claimants. A list of all Claimants was attached to the Grounds of Claim (as Annex 1). It was claimed that the Claimants had all been employed as FMEs under a contract of employment. The Claimants were seeking a declaration to determine their employment status, legal rights and obligations arising from their employment relationship with the Respondent (and / or Second Respondent).

[21]Paragraph 4 of the Grounds of Claim identified that the preliminary issue in the Claim was whether the Claimants were:(1) “employed under a contract of employment within the meaning of s.230(1) of the Employment Rights Act 1996 (“ERA”)”; or

(2) “workers within the meaning of s.230(3)(b) ERA 1996”.

[22]It can be seen that the formulation of the preliminary issue for the preliminary hearing essentially follows the formulation of the issue set out at paragraph 4 of the Claimants’ Grounds of Claim.

[23]The Grounds of Claim went on to state that if “the Claimants are found to be employees or workers, they assert their rights to entitlements pursuant to the following statutory provisions” in respect of:(1) a redundancy payment under ERA 1996 section 135;

(2) an award for failure to provide a written statement of particulars of employment under ERA 1996 section 1;

(3) an award for holiday pay for accrued but untaken annual leave (claimed both under regulation 16(1) of the Working Time Regulations 1998 and as an unauthorised deduction from wages under ERA 1996 section 13).

[24]The viability of these complaints clearly depended upon the Claimants being able to establish that they were “employees” and / or “workers” for the purposes of the applicable statutory provisions.

[25]Claims for a redundancy payment require that the Claimants have employee status. Claims for holiday pay and unauthorised deductions from wages require worker status. In relation to complaints of a failure to provide a written statement of particulars, prior to 6 April 2020, such complaints required employee status; since that date, ERA 1996 section 1, as amended, requires only worker status. However, the applicable transitional provisions mean that the amendments only apply to a written statement required to be given where the worker begins employment on or after 6 April 2020.

[26]The Grounds of Claim made it clear, for the avoidance of doubt, that the Claimants were not bringing complaints in respect of breach of contract as part of these proceedings. The Claimants expressly reserved the right to bring any Claims for breach of contract elsewhere if they are found to be employees of the Respondent.

[27]The Claimants’ pleaded case is effectively that they worked pursuant to a contract, the written “Contract for Services”, which the lead Claimants signed in 2009. The pleaded case is that the correct legal categorisation of that contract was either(a) a contract of employment; or

(b) a contract that was of worker status.

[28]Amended Grounds of Resistance were provided dated 21 January 2022.

[29]The lead cases appear to have been chosen by the Claimants. Reservations were apparently expressed on behalf of the Respondent as to whether the six lead Claimants were the appropriate lead Claimants but this was resolved on the basis of an agreed concession from the Claimants that there was no material difference between the 2009 and 2014 contracts and, therefore, no material distinction between those Claimants who had signed only the 2009 contract, both the 2009 and 2014 contracts, or only the 2014 contract. Issue as to amendment of Claim

[30]The closing written submissions of the Respondent dated 2 February 2024 sought to contend that the Claimants were pursuing a case which was not part of the pleaded case in respect of which they had not obtained permission to amend their Claims.

[31]The Respondent’s argument was that the Claimants’ pleaded case was that they worked pursuant to a contract, the written “Contract for Services”, which was signed by the lead Claimants in 2009, as pleaded at paragraph 7 of the Grounds of Claim. The Respondent’s analysis of the Claimants’ pleaded case was that the Claimants were pleading that the correct legal categorisation of that contract was either(a) a contract of employment (paragraphs 22 to 27 of the Grounds of Claim) or

(b) that the contract was one of worker status (paragraph 49 of the Grounds of Claim).

[32]On this analysis, the Respondent contended that the pleaded case of the Claimants relied on the written contract of 2009 as a single ‘overarching’ contract, and alleged that its character was of employment or alternatively worker status.

[33]On the first day of the hearing, an Opening Note was provided on behalf of the Claimants. The Claimants’ case was summarised at paragraphs 28 and 29 as being that the Claimants “contend that they were employees and/or workers engaged under an umbrella contract covering the period 1996 until its termination on 30 April 2021”; alternatively, “they were employees and/or workers engaged under a series of contracts to perform work for which the Respondent was obligated to pay the Claimants”. Summary submissions “on umbrella contracts” were set out at paragraphs 45 and 46 of the Opening Note to the effect that the “Claimants’ primary case is that they worked pursuant to an umbrella contract which possessed the requisite irreducible minimum of mutual obligation continuously from the date of the 1996 contract onwards” but the “Claimants’ alternative case is that they worked pursuant to a series of individual employment contracts”.

[34]The closing submissions of the Respondent contended that the Opening Note involved the Claimants changing / adding to their case without there having been any successful application to amend their case. Thus, the Respondent contended that, in the Opening Note, the Claimants “reimagine the case they are putting before the Tribunal to include an additional alternative position” in that, as well “as maintaining that there was what is now described as an “umbrella” contract”, the Claimants “now wish to submit in the alternative that they worked pursuant to a series of individual contracts” (with reference specifically being made to paragraph 46 of the Opening Note) so that the Claimants “go on to submit that these individual contracts were of employment, alternatively worker status”. The closing submissions stated that the Respondent’s position was that the Claimants’ “are not entitled to change their case from that which is pleaded” and any “application to amend will be resisted”.

[35]In any event, it was effectively being suggested by the Respondent that any case which placed reliance upon the existence of a series of individual contracts was flawed once consideration was given to where it would take the Claimants (so that, if permission was needed to pursue such a case, there was no prejudice to the Claimants in such a mission been refused).

[36]As far as any complaint in respect of being entitled to a redundancy payment was concerned, even assuming that any series of individual contracts were of employment, the Claimants would be unable to establish sufficient continuity (which would need to amount to two years) to pursue such a complaint, as the pattern of shifts, at least with all of the lead Claimants, was such that continuity would be broken and any complaint seeking a redundancy payment would fail. There would be the additional problem, in the cases of Dr Green and Dr Sarkar, of any complaint seeking a redundancy payment not having been brought within six months of the date of termination if time ran from the date of the final shift.

[37]As far as any complaint in respect of holiday pay was concerned, based on the Claims having been presented on 7 October 2021, and taking account of the dates of early conciliation, the last shift (in terms of the last contract date) would have needed to be on or after 30 April 2021, in order for the complaint to be in time at all. Whilst the holiday pay complaint of Dr PayneJames would have potentially been in time, the holiday pay complaints of the other lead Claimants would be out of time.

[38]Insofar as any holiday pay complaint was advanced on the basis that there were a series of individual contracts, the accrued untaken holiday pay would have crystallised, at the termination of each shift, for that shift, so that the complaint would be limited to the holiday pay accrued for that shift. Moreover, if any holiday pay complaint was cast as a series of unauthorised deductions, any such complaint would be limited to those deductions within the period of two years ending with the date of presentation of the complaint, so that the complaint would be limited to the period between 8 October 2019 and 7 October 2021.

[39]On the basis set out above, it was argued that these problems weighed against there being any prejudice to the Claimants in not being permitted to proceed with the alternative argument based on a series of individual contracts.

[40]The Claimants responded to this argument by way of further submissions dated 4 March 2024. The comment was made that “remarkably, the Respondent did not raise this as a preliminary issue despite receiving the Claimant’s opening note on 6 November 2023” but instead “the Respondent has waited until the end of the evidence to raise a pleading point”.

[41]I was not satisfied that the Claimants needed permission to amend their Claims to pursue their alternative case that, if there was no overarching or umbrella contract under which they were employees or workers for the purposes of ERA 1996 section 230, each shift worked amounted to a separate contract in respect of which each Claimant was, or at least the duration of the shift, either an employee or a worker the purposes of ERA 1996 section 230.

[42]Having regard to the way in which the preliminary issues had been formulated, including their formulation as set out in the Respondent’s closing submissions, there was no indication within those issues that the Tribunal was constrained in not being able to determine that the Claimants worked or were employed pursuant to a series of individual contracts.

[43]Although, perhaps, not as clear as it might have been, the issue of status, employment or otherwise, in respect of each assignment worked, was effectively raised in paragraph 37 of the Particulars of Claim which was in the terms set out below. “Further and in any event, there was an obligation on each Claimant who had accepted a particular duty, to perform that work in return for payment at the specified rate”.

[44]I was prepared to accept that the Claimants’ submission that this clearly covered employment status in respect of each individual “on duty” period. The Claimants were only required to plead the material facts giving rise to the relevant cause(s) of action, not matters of law.

[45]Further, paragraph 49 of the Particulars of Claim had pleaded, in the alternative, that “for all the reasons stated above” the Claimants were workers. The reference to “for all the reasons stated above” was capable of including the contention contained at paragraph 37 of the Particulars of Claim in relation to each particular duty.

[46]Further, the Particulars of Claim had made it clear, at paragraph 23, that the Claimants were seeking to establish employee / worker status “throughout the duration of their engagement” with the Respondent..

[47]Accordingly, I was satisfied that the issue was sufficiently pleaded.

[48]In any event, I was not satisfied that it was necessary to plead, specifically, the existence of individual contracts of employment during “on duty” periods, as opposed to an “umbrella” contract. The issue for the Tribunal to determine was whether the Claimants were employees or workers of the Respondent during the period in question. This was a question of jurisdiction. In considering this, it was plainly open to the Tribunal to find that while there was no umbrella / overarching contract for the whole of the period but there were a series of individual contracts when each Claimant was “on duty” working, meaning that, as such, it had jurisdiction to hear these Claims (see Nursing and Midwifery Council v Somerville

[2022] ICR 872

, at paragraphs 25 to 33, and Community Care Health Limited v Narayan [2019]

UKEAT/0162/18/JOJ

, at paragraphs 52 to 53, in which Kerr J appeared to express surprise that the Judge and parties at first instance did not conduct the same exercise).

[49]Thus, on the basis set out above, the Tribunal was entitled to consider as a matter of law whether the Claimants were employees / workers throughout the whole of the period, or alternatively on each occasion that they worked for the Respondent.

[50]Alternatively, had I been persuaded that the Claimants needed permission to amend their Claims in this respect, I would have granted such permission, having regard to the potentially relevant factors to be taken into account by Tribunals in considering whether to allow a party to amend its claim, as set out in Selkent Bus Co Limited v Moore

[1996] ICR 836

and Vaughan v Modality Partnership [2021] ICR. 535.

[51]In terms of the nature of the amendment, this was not an amendment which was introducing new causes of action. The causes of action remained the same. The new element that would have been being introduced was effectively that of an alternative gateway to the same causes of action.

[52]In terms of any delay, whilst the Respondent was suggesting that this alternative argument had not been raised until the Claimant’s Opening Note, the explanation appeared to be that the Claimants considered that this issue already arose out of the pleadings.

[53]As to the suggestion of the Respondent that an alternative case based on individual contracts in respect of individual shifts would give rise to difficulties for some Claimants, it was submitted on behalf of the Claimants that this was a question of limitation which fell outside the scope of the preliminary hearing which simply required the Tribunal to determine employee or worker status, requiring a precise legal focus as identified by Employment Judge Davidson in the Notice of Hearing. Obviously, the impact of time limits is a potentially relevant factor to be taken into account in considering a proposed amendment. However, whilst it appeared likely that accessing statutory rights through this alternative gateway might give rise to limitation difficulties for some of the Claimants, this would not necessarily apply to all of the Claimants and any application to amend could be dealt with on the basis that any decision as to the applicability of time limits was better addressed at a later point in time when there was evidence specifically directed to these issues (see Galilee v Commissioner of Police of the Metropolis

[2018] ICR 634

[54]In terms of the balance of injustice and hardship in allowing or refusing any application to amend, on the factual matrix before the Tribunal the issue obviously arose as to whether individual shifts gave rise to individual contracts in respect of which the Claimants were either employees or workers, and this was an issue which the Claimants were clearly seeking to pursue as set out in their Opening Note. No issue had been taken at that stage as to the issue being raised. As Kerr J suggested in Community Care Health Limited v Narayan [2019] (see above), at paragraphs 52 to 53, it would be surprising were the issue not to be addressed. The Respondent sought to argue that there would be no prejudice if the gaps between the shifts or the period from the end of a Claimant’s last shift caused a complaint to be statute-barred. However, this was a consideration which would vary from Claimant to Claimant. In a hearing which was dealing with lead cases so as to arrive at a ruling which would apply to all Claimants, refusing such an amendment on these grounds would potentially deprive some Claimants, who might have in time complaints, of a potential remedy via this alternative route. It made sense to decide the alternative status point on principle and then consider the limitation issues at a subsequent hearing. I was satisfied that the Tribunal had before it the evidence to deal with the alternative status point and the parties had had the opportunity to do so.

[55]Further pleadings points were also raised further pleadings points were also raised in the Respondent’s closing submissions. Insofar as the Claimants sought to contend that there was a contractual duty on the Respondent to allocate shifts fairly between FMEs, the Respondent’s closing submissions argued that this involved the Claimants putting forward a case which was outside the scope of the Grounds of Claim, so that the Claimants would need permission to amend their Claim to put forward such a case.

[56]The Claimants contended that there was no obligation on them to plead every term of the contract on which they rely, particularly before disclosure has taken place. This was not a breach of contract case, but one that depended on an assessment of the practical reality of a working relationship.

[57]Paragraph 32 of the Grounds of Claim does assert that the Respondent was “under an obligation to offer work when available and the Claimants were under a corresponding obligation to accept work when offered”. The alleged obligation to do so on a fair basis took this alleged obligation a little further. On one view, the point being made by the Claimants, which had acquired the clothes of a contractual point, was really a point which went to the main thrust of the case, namely that the focus needed to be on the reality of the working relationship, with one of the elements of this reality being stated to be that the Respondent acted on the basis that there was an obligation on it to distribute fairly. Certainly, Anne Reilly accepted that she sought to do so on an equitable basis. The issue really was the extent to which this amounted to an obligation, whether legal or otherwise, and, either way, the significance of this in the context of considering whether the contractual position was consistent with the reality.

[58]I was not satisfied that permission to amend was needed. This was an issue which arose out of the central issue in the case, namely how the contract operated on the ground and whether this was consistent with(1) the existing contractual position, and

(2) any relationship coming within the scope of the applicable statutory definitions for employee and worker status.

[59]Had I been satisfied that permission to amend was needed, then I would have granted such permission. The point being made by the Claimants largely arose out of the existing pleaded factual matrix. It may be that this reflected a refinement of the Claimants arguments as the case went along. However, in terms of the balance of injustice and hardship it seemed very much like a pleading point taken in passing by the Respondent, without directing the Tribunal to any meaningful prejudice, before then demonstrating the lack of any prejudice by dealing with the point in submissions.

[60]In their case as pursued at the hearing, the Claimants sought to place significant reliance upon the contractual requirements at paragraph 4.7(v) in respect of providing witness statements as going to mutuality of obligation. Again, the Respondent adopted the position that this involved advancing a contention not pleaded in the Grounds of Claim so that the Claimants would need permission to amend the Claim in order to rely upon such a ground.

[61]The Claimants similarly made the same point as already outlined above that there was no obligation on them to plead every term of the contract on which they rely, particularly before disclosure has taken place. Again, the point was made that this was not a breach of contract case, but one that depended on an assessment of the practical reality of a relationship, one aspect of which was the position in relation to witness statements. The issue at the heart of the case was that of the extent to which the Respondents were able to rely upon the terms of the contract as defeating the Claimants’ contentions in respect of status or whether any such terms did not reflect the reality of the situation. It was an artificial exercise to suggest that any focus should be on some terms and not others by reference to any terms which were specifically highlighted in the Grounds of Claim. This was not so much a case regarding the effect of a particular clause as the effect of the contract viewed as a whole and in the context of the practical reality of the situation. In carrying out this exercise, the Tribunal was not going to be assisted by the parties cherry picking or excluding particular clauses. As such, I was not satisfied, in relation to this issue, that permission to amend the Claim was required.

[62]Alternatively, in so far as necessary, I would have granted permission to amend the Claim, having particular regard to the balance of injustice and hardship. For the reasons set out in the previous paragraph, I was satisfied that there would have been significant prejudice involved in excluding this line of argument. Conversely, I was not persuaded that there was any significant prejudice to the Respondent. The reality as to the position in respect of witness statements was explored over the course of the evidence and the Respondent was able to give detailed submissions on the point. Issue as to amendment of Response

[63]In closing submissions, the Respondent sought to rely upon the doctrine of the undisclosed principal, essentially arguing that any contract with the Respondent had not been with the FME but had been with any corporate or partnership entity set up by the FME concerned (and through which the Respondent was invoiced for any work by the FME).

[64]Linked with this point, where the corporate or similar entity concerned received payment from the Respondent and then paid wages to the FME concerned as an employee, the Respondent’s further contended that any such FMEs could not be employees of the Respondent given that they were employed by the corporate or other entity concerned and could not have two employers in respect of the same work.

[65]In replying to these submissions, it was contended on behalf of the Claimants that the Respondent was not able to pursue such an issue without permission to amend its Response.

[66]It was pointed out that, in the Response, no issue had been raised by the Respondent, or any denial made, as to the Claimants being the correct contracting parties under the relevant contracts. Indeed, in so far as the Response raised the issue as to the correct contracting party, it was in terms of the issue as to which of the two Respondents was the correct Respondent (see paragraphs 5 to 8 of the Amended Grounds of Resistance). As such, it was contended that the Grounds of Resistance did not, at any point, deny that the Claimants were the correct contracting parties to the relevant agreements. As such, it was submitted that an amendment would be required in order for the Respondent to rely upon this argument at such a late stage.

[67]In this regard, the Tribunal was invited to reject any such application to amend the Response in this way. It was suggested that allowing such an application, at such a late stage, would result in the Claimants being significantly prejudiced.

[68]The Claimants relied upon the case of Community Based Care Health Limited v Narayan [2019] (see above), where an issue had arisen as to whether the undisclosed principal doctrine could be raised on appeal, not having been raised before the Employment Tribunal. Kerr J made clear the importance of the reliance on the doctrine of the undisclosed principal being made clear prior to the hearing of evidence, and the practical consequences of failing to do so, as set out below. “20. …A party seeking to deny a contract with a person by asserting that the contract (if any) was with another, should do so plainly; cf. the similar reasoning in Exmoor Ales Ltd v Herriot

UKEAT/0075/18

. Mr Gibson alluded to the identity of the contracting party merely as a building block in his case that the Claimant was not an employee as she was in business on her own account and the Respondent was her client.21. He did argue that any contract was with the company after October 2015 but he did not argue the contract point as one of agency or of statutory construction of section 230(3)(b) of the 1996 Act, as Mr Pilgerstorfer now seeks to do. A person asserting an agency relationship needs to identify the principal and the agent and the reasons why the latter contracted on behalf of the former. While I do not think the factual enquiry would have been very different, the focus of the questions asked and of the advocacy would have been very different.

22. It is telling that Mr Pilgerstorfer says in his skeleton argument that there was “no basis to assume otherwise than that the Respondent would have been willing to enter into a contract with [the company]”. The Respondent never had to consider that issue and I am not aware that any of its witnesses were asked below whether the Respondent was in the habit of contracting with companies rather than doctors.

23. Ms Callan therefore had no opportunity below to put to the Respondent’s witnesses that the Respondent might have thought twice before accepting the company as counterparty. Why did the Claimant not reveal its existence to the Respondent? Nor did Ms Callan have the opportunity to engage with Mr Pilgerstorfer’s construction of section 230(3)(b), that a “worker” contract must be concluded by the worker herself and not by any other person”.

[69]The Claimants submitted that, the same principles applied in the present case. The first time that the undisclosed principal doctrine was mentioned, or, indeed, an express argument made that the Claimants were not the actual contracting parties to the relevant agreements with the Respondent, was in the Respondent’s closing submissions. Thus, the Claimants further submitted that, as a result of the point not being pleaded or explicitly raised prior to the closing submissions, no factual enquiry of the Respondent’s witnesses on the issue could be made (or was deemed necessary, given the pleadings did not raise issue with the Claimants being the contracting party to the relevant agreements). Clearly, it was also not an issue addressed in the Statements of Evidence of the Claimants. Thus, it was contended that it would, accordingly, be wholly prejudicial to allow the Respondent to rely upon this argument now given the Claimants’ lack of opportunity to deal with the issue in evidence or explore the issue with the Respondent’s witnesses.

[70]These points had been raised on behalf the Claimants in the written submissions replying to the Respondent’s written submissions. As such, these points were then dealt with in the oral submissions made on behalf of the Respondent on the final day of the hearing, effectively replying to the Claimant’s submissions in reply..

[71]The essential case being put forward on behalf the Respondent was that, under ERA 1996 section 230, a “worker” contract (or an “employee” contract) must be concluded by the worker or employee concerned and not by any another entity. Effectively, each Claimant had no status under ERA 1996 section 230 unless he or she contracted, as an individual, with the other contracting party. Moreover, just because a Claimant signs his or her name on the contract and just because the Respondent may be unaware of another party, it does not follow that the Claimant is the contracting party as the Claimant may be an agent for an undisclosed principal.

[72]Reference was made by the Respondent to the evidence which had been explored in cross-examination with various lead Claimants, the classic example of which involved services being invoiced through a corporate vehicle of some description as set up by the FME, such as a company, of which the lead Claimant concerned was an employee, with invoices then being sent by that company to the Respondent seeking payment for the services of the FME, resulting in the company being paid by the Respondent and the FME receiving payment from the company in the form of modest employment wages and potentially more significant personal dividend payments which gave rise to tax liabilities at a rate more favourable than would have been the case had any fees been paid direct to the FME as a form of income or remuneration. The legal effect was stated to be that such an FME was acting as an agent for an undisclosed principal

[73]The point being made by the Respondent in responding to the pleadings point raised by the Claimants was that it was the Claimants who were claiming status as employees or workers so that it was for the Claimants to establish that they were the contracting party for the purposes of any requirement under ERA 1996 section 230.

[74]The position of the Respondent in relation to the Claimant’s reliance upon the way in which the issue had been dealt with in Narayan (see above) was that the paragraphs cited from the decision of Kerr J in which he had dismissed the undisclosed principal argument in that case were not binding as they were obiter dicta and / or were fundamentally wrong (in respect of which permission had been granted to appeal to the Court of Appeal although the proceedings ultimately came to an end without a decision on that issue). Thus, the position of the Respondent was that it was not necessary to plead specific reliance on the undisclosed principal point and the decision in Narayan either does not say otherwise or, in so far as it does, is wrong. It was for the Claimant to establish that he or she was party to a contract from which employee or worker status derived.

[75]The Respondent submitted that it had been entitled to lead evidence, ask questions and, ultimately, at the end of the case, submit that the Claimants had failed to establish that a necessary building block in their case.

[76]I was satisfied, for the same reasons as those put forward by Kerr J, that the points now being taken by the Respondent should have been raised in the Response.

[77]However, I was also satisfied that the Respondent should be given permission to amend its Response to rely upon such any such defence(s). The nature of the issues now being raised issue went to the heart of the case, namely whether the Claimants were within the scope of the definition of an employee or worker for the purposes of ERA 1996 section 230(1) or (3)(b). In terms of the complaints being pursued by the Claimants, it was effectively a jurisdiction point. The point needed to be dealt with by the Tribunal. It would be artificial not to do so on the basis of the point not having been raised earlier. Some explanation, or at least a partial explanation, for the late stage at which the point was being raised, derived from the late disclosure of documents as to the tax arrangements in place by which the lead Claimants dealt with any tax liability arising out of fees paid by the Respondent, which gave rise to the evidential basis for the argument to the effect that the contract involved an undisclosed principal and / or the FMEs concerned were actually employed by their own corporate or other tax vehicle. Thus, it was stated on behalf of the Respondent that, insofar as any amendment was necessary, such an amendment was contingent upon late disclosure before which the point could not be identified.

[78]I was not satisfied that allowing the point to be pursued involved any prejudice to the Claimants (other than the risks of litigation which ultimately depended on whether the point was well-founded). It was suggested that the Claimants were effectively prevented from having explored the issue themselves, for example in cross-examination with the Respondent’s witnesses. However, there was nothing to indicate that the Respondent’s witnesses would have been able to say anything relevant or that exploring the issue would have resulted in the evidence ending up in a different place. Essentially, this was a legal point. The relevant evidence came from the Claimants themselves, both in terms of the evidence provided as to the corporate vehicles through which their services were provided, and their answers in cross-examination. I was not satisfied that, had the point been raised any earlier, the factual matrix before the Tribunal would have been any different. There was no unfairness in that the lead Claimants could not credibly suggest that the answers given in cross-examination would have been any different (or, had they been so, such answers would have lacked credibility in the face of the documentary evidence regarding the reliance on corporate vehicles for the purposes of dealing with the tax liability in respect of fees).

[79]There was potential prejudice to the Claimants in being expected to respond to the point when it was raised for the first time in the Respondent’s closing submissions. However, the Claimants had asked for and obtained an adjournment to deal with the point and subsequently dealt with it by way further written submissions in reply.

Evidence

[80]As stated, there was an agreed Core Bundle of 1140 pages as well as separate Bundles for each Claimant. Further documents were added during the course of the hearing, mainly in relation to the tax and financial records of the lead Claimants.

[81]Written Statements of Evidence were also provided by each of the Claimants, although oral evidence was only given by the lead Claimants.

[82]For the Respondent, Statements of Evidence were provided by Danny Hewitt (Inspector, Forensic Healthcare Services, between 2014 and 2021), Chris Oasgood (Forensic Healthcare Services Team Manager from September 2020 and Rota Manager prior to that) and Anne Reilly (former Forensic Healthcare Services Rota Administrator between July 2013 and September 2020). Oral evidence was heard from Danny Hewitt and Anne Reilly. Relevant contractual terms and findings of fact The Claimants

[83]The Claimants were all registered medical practitioners working as FMEs providing custodial healthcare and forensic medical services to the Respondent under various contracts for services that were entered into over time. The vast majority were engaged under 1996 and / or 2009 contracts, and the remainder under a 2014 contract introduced in or about August 2014. There was no significant or material difference between the 2009 and 2014 contracts. Of the 21 Claimants, it appeared that only eight had signed the 2014 contract whereas 19 had signed the 2009 contract. Thus, there were six Claimants who appeared to have signed both the 2009 and 2014 contracts and two who had only signed the 2014 contract. These contractual arrangements were brought to an end by the Respondent on 30 April 2021.

[84]From the group of 21 Claimants, several Claimants had more than 20 years of service working for the Respondent.

[85]The Respondent also employed nurses, known as Custody Nurse Practitioners (CNPs) and Custody Nurse Practitioner Area Managers (CNPAMs), in providing forensic healthcare services within the Respondent’s various custody suites and police stations across the Respondent’s metropolitan areas. These areas were divided into sub areas that changed over time. The lead Claimants

[86]Dr Peter Green was one of the longest serving FMEs with 40 years’ continuous service, having worked under various contracts (including the 1996, 2004 and 2009 contracts) from 28 January 1981. At the point that the contract was terminated, his current contract was a contract which he had signed in January 2009. Prior to this, he was a Principal FME (“PFME”) and was paid an “availability fee” quarterly, as a form of retainer.

[87]Dr Jason Payne-James had worked under various contracts (including the 1996, 2004 and 2009 contracts) from 1991. He also signed a new contract in January 2009 but appears not to have signed the 2014 contract.

[88]Dr Charles Capper had been working for the Respondent since July 2005, initially under the 1996 contract. He signed the 2009 contract in February 2009 but appears not to have signed the 2014 contract.

[89]Dr Ujjal Sarkar also worked for the Respondent from 18 April 2006 (which would initially have been under the 1996 contract). He had signed the 2009 contract but appears not to have signed the 2014 contract.

[90]Dr Katie Fairhead also worked for the Respondent from 18 April 2006 (also initially under the 1996 contract). She had signed the 2014 contract but appears not to have signed the 2009 contract.

[91]Dr Paschal Forkuo worked for the Respondent from 2 October 2009. He had signed the 2009 contract but appears not to have signed the 2014 contract.

[92]A potential issue arose over the date that each of the lead Claimants had worked his or her last shift. In the case of Dr Forkuo, his last session was 24 April 2021. In the case of Dr Fairhead, her last session was 29 April 2021. In the case of Dr Capper, his last session was 13 April 2021. In the case of Dr Payne-James, his last session was 30 April 2021.

[93]However, in the case of Dr Green, this had been around March 2020 as he had thereafter shielded due to Covid-19.

[94]In the case of Dr Sarkar, there is documentary evidence, in the form of invoices, showing him having worked a session on 17 November 2019, with the previous session, prior to that, having been 3 November 2019. There was no evidence of him having worked a shift subsequently.

[95]In so far as it was relevant, for example if continuity became an issue, it is also clear that there had been significant gaps between shifts for most of the lead Claimants in the period prior to their last shift. Dr Payne-James had a break in continuity of over a week for the period between 17 December 2020 and 19 January 2021. Dr Forkuo had a gap of a week between 31 July 2020 and 7 August 2020 and 12 days at the start of April 2020. Dr Fairhead had a gap between 17 and 28 December 2020 and between 12 February 2020 and 3 March 2020. Dr Capper had potentially relevant gaps as the only shifts that he had worked in March and April 2021 were on 16 March 2021, 30 March 2021 and 13 April 2021. He had also not worked any shifts between March 2020 and January 2021 due to the pandemic Role of Forensic Medical Examiner.

[96]The role of FMEs entailed various responsibilities and duties, including the following:(1) making medical and forensic assessments of police detainees in police custody, individuals detained under the Mental Health Act 1983, complainants of crime, police officers injured whilst on duty, drivers arrested for road traffic offences, and at scenes of death visited to pronounce life extinct and advise on possible suspicious circumstances;

(2) providing routine advice on fitness of individuals to be detained or interviewed or charged or transferred,

(3) advising on whether an individual required an appropriate adult or whether a driver might be under the influence of drugs or alcohol ;

(4) advising on whether evidence was of forensic significance;

(5) conducting intimate searches of detainees as provided for under the terms of the Police and Criminal Evidence Act 1984;

(6) recording injuries and taking forensic samples from victims of crime and detainees as required.

(7) providing statements for the Crown Prosecution Service and presenting evidence in court when required. Groups and grades of FMEs

[97]The Core Bundle contained various sample contracts, namely:(1) FME and PFME contracts from 1996;

(2) FME and Senior FME contracts from 2000;

(3) FME and PFME contracts from 2004;

(4) FME contract from 2009;

(5) FME contract from 2014.

[98]Under the 1996, 2000, 2004 and 2007 contracts, all FMEs were arranged into “groups” covering specific police stations, (as set out in Annex 2 of the 1996 contract). Each FME was contractually assigned to a group (see paragraph 5.1 of the 1996 contract).

[99]There had been 4 “grades” of FME, namely:(1) Principal FMEs (“PFMEs”);

(2) Senior FMEs (“SFMEs”);

(3) FMEs; and

(4) Assistant FMEs (“AFMEs”)

[100]Each FME had worked under a contract specific to his or her grade.

[101]A Principal FME had been assigned to each “group” of FMEs, to act as head, and they were subject to additional responsibilities not required of SFMEs, FMEs or AFMEs. These responsibilities included the drafting / effective management of a roster, to ensure that an FME was on duty within the relevant group area at any given time, and communication of the roster with the relevant police stations.

[102]Senior FMEs were FMEs who had passed the Diploma in Medical Jurisprudence, or who had more than 15 years’ experience in the forensic field.

[103]Assistant FMEs were doctors who were new to clinical forensic medicine, and FMEs were those who were not new to forensic medicine, but who did not fulfil the requirements of the SFME grading. 1996 Contract

[104]The 1996 contracts were identically worded for all grades, with the exceptions set out below.(1) The PFME contract contained additional responsibilities at paragraphs 5.1, 5.4, and 5.5.

(2) Each grade of FME, with exception of Assistant FMEs, was to be paid an “availability fee” (a form of retainer) specific to the grade concerned under paragraph 8.1(i) of the contract for each grade.

(3) Senior FMEs were also entitled to be paid a “supplementary fee” by virtue of their additional qualification / length of service if more than 15 years.

[105]Under paragraph 3.2 and 4.1 of the 1996 Contract, there were requirements in respect of the party contracting with the Respondent in terms of being suitably qualified, and fully registered and authorised to practise as a medical practitioner, as set out below. “3.2. It is understood and agreed that as a qualified and fully registered medical practitioner…”. “4.1. It is an express condition of this Agreement that you are, and will throughout the duration of the Agreement remain, registered with the G.M.C. and authorised to practise as a medical practitioner”.

[106]Under paragraph 3.2 of the 1996 Contract, the FME was also required to exercise “independent clinical judgement” and to practise in accordance with the General Medical Council Codes of Practice.

[107]Paragraph 5.5 of the 1996 Contract set out various duties to be performed by each FME in the terms set out below. “You agree on request to perform any of the following duties on behalf of the MPS, outside the National Health Service:(i) to examine and if necessary render assistance to any person in police detention;

(ii) to obtain forensic evidence from, to examine, and if necessary, tender medical assistance to, victims, suspects and offenders in crime and traffic cases;

(iii) to examine any person whose detention in police custody is contemplated for the purpose of certifying whether that person is fit for detention and/or interview, and to certify accordingly;

(iv) to examine and if necessary render medical assistance to any MPS officer injured in the course of his or her duty;

(v) in any case where you consider a person is unfit to be detained or interviewed, or an officer to continue on duty, to take any steps you consider necessary for the medical well-being of that person or officer;

(vi) immediately following any examination under any of the paragraphs (i) to (iv) inclusive, to provide, by means of completing an entry in Book 83, a written report on those matters clinical or forensic sufficient to assist the police enquiry, or to provide written advice to assist the Custody Officer in caring for the detainee and for the furtherance of police enquiries;

(vii) to examine any person in order to ascertain whether that person is or is not dead, and if so requested to provide an opinion as to whether or not he or she died of natural causes;

(viii) to examine any remains which are believed to be human remains and to give an opinion (if possible) as to whether they are;

(ix) to advise or assist any officer or employee of the MPS who requires medical advice or assistance in the execution of his or her duty;

(x) to give medical examinations to applicants for the MPS Special Constabulary and to report in writing as to each candidate’s fitness for appointment in accordance with criteria laid down by the MPS from time to time; and

(xi) to attend any court of Law or tribunal when required to do so (whether by an officer or employee of the MPS, a solicitor acting for the MPS, the Commissioner or the Authority, or by the Crown Prosecution Service) in order to give evidence in connection with any matter with which you have been involved in the course of your duties hereunder; and for these purposes any disciplinary tribunal under the Police Discipline Regulations is to be regarded as a tribunal under this paragraph”.

[108]Paragraph 5.4 of the 1996 contract sought to ensure that there were always sufficient FMEs on duty through the provision set out below. “You and each other FME within your Group (such expression including Assistant and Senior FMEs), together with the Principal FME for your Group (herein “your Principal FME”), must devise (if it is not already in existence) and operate under a roster under which at least one FME is on duty at any time (24 hours a day and all the days of the year) and agree to participate in effective backup procedures. “On duty” means immediately contactable if required and available to attend as soon as reasonably practicable on being requested to attend any police station or other place within the Area described in clause 5.1 above, or where applicable elsewhere within the area described in clause 5.2”.

[109]Paragraph 4.4 of the 1996 contract set out obligations (in the form of undertakings) which were required of each FME in terms of training, including completing core training courses approved by the Respondent for FMEs and attending training events designated or approved by the Respondent as to obtain 24 hours of accreditation in each year. Subsequent Contracts

[110]The 1996, 2000, 2004 and 2007 contracts were essentially identical in all relevant respects, save for their duration, in that:(1) the 1996 and 2000 contracts were for a 10-year period;

(2) the 2004 PFME contract was for a 3-year period; and

(3) the 2007 contract duration varied given the expected introduction of the new 2009 contract.

[111]The 2004 PFME contract also contained the addition of a further responsibility under paragraph 5.4 as set out below. “In the event of disagreement with one or more members of your group, you will arrange a rota as you see fit after discussion with the Commissioner’s Representative. Aggrieved members of your group may make representation concerning this to the Commissioner’s Representative but will be expected to operate the new or modified roster until such time as their representation is considered”.

[112]As a result of the 10-year duration of the 1996 contract, and the expected introduction of a new contract in January 2009 following a proposed reorganisation of the FME service, in the period between 2007-2009 FMEs worked under “interim contracts”. These were, in effect, continuations of the 1996 contracts, and FMEs signed statements agreeing to work on unchanged terms and conditions. Payments prior to 2009

[113]Up until 2009, FMEs were paid per item of service for every patient seen which would vary depending on what the FME did for that patient. This changed with the agreement of a new contract in 2009, following which a new system of payment was introduced which depended on the number of hours on call and not the amount of work done. Introduction of 2009 Contract

[114]A reorganisation of the way in which the FME service was run was implemented in January 2009. Under the new system, the Respondent set up a centralised team (staffed by employees of the Respondent) to organise the FME service across all areas. This team became responsible for the creation and management of the FME rotas, and as a result of these changes, new contracts were issued to all FMEs to take effect on 31 January 2009 (the 2009 contract).

[115]In evidence, Dr Green, confirmed that the terms of the 2009 Contracts for Services were formally negotiated and agreed between the Respondent and the FMEs then in post, with Dr Green being identified as one of the lead negotiators on behalf of the FMEs. The FMEs required amendments to the draft 2009 contract, without which they refused to sign the same. In reality, whilst Dr Green could negotiate the written terms to a limited extent, the changes from 1996 were relatively minor.

[116]All of the lead Claimants signed the new Contract in 2009 and confirmed in evidence that they read through the 2009 Contract and understood the same, before then signing and agreeing to the terms agreed. In particular, they understood, that the signing of the 2009 Contract resulted in the termination of all prior agreements. It was not in dispute that, under the words “Agreed and accepted by”, each lead Claimant signed a copy of the 2009 Contract. Changes introduced by 2009 Contract

[117]The 2009 contract changed various features of the 1996 contracts, including in the ways set out below.(1) The FME grading system was abolished. All FMEs received the same ungraded contract.

(2) The “group” system was abolished.

(3) Fees ceased being payable per attendance but were instead paid on an hourly rate basis.

(4) “Availability” and “supplementary” fees were also abolished, and a “tier” system introduced whereby those with the requisite qualifications were paid at a higher “Tier 2” hourly rate.

[118]The previous contracts under which the Claimants were working prior to 2009 were expressly terminated on signature of the 2009 contract, with paragraph 12.2 being in the terms set out below. “This Contract supersedes any prior agreement between the parties … for the provision of your services as a … Forensic Medical Examiner … which it is hereby agreed is terminated by mutual agreement with effect from the Effective Date”. Status under 2009 Contract

[119]Paragraph 3.2 of the 2009 contract confirmed the subservience of all other contractual obligations to the FME’s professional status as set out below. “It is understood and agreed that as a qualified and fully registered medical practitioner your services are provided as a professional exercising independent and impartial clinical judgement and that you are obliged at all times to practise in accordance with ethical and other professional standards required by the General Medical Council (“G.M.C.”). All of your obligations which arise under the terms of this Contract shall be subservient to your obligation to practise in accordance with these standards”.

[120]As such, Danny Hewitt viewed the FMEs as independent professionals who would make clinical assessments and judgments on that basis. Thus, an FME who was requested to attend two different custody suites, to attend on detainees in need of medical assistance, would make a clinical assessment as to which custody suite to attend. This would not be dictated by the wishes of the Custody Officer but would be based on the FME’s professional judgement.

[121]Paragraph 3.6 of the 2009 contract was in the terms set out below. “The basis of this Contract is that you are self-employed and are and will remain responsible for income tax and National Insurance Contributions as a self-employed person. Nothing in this Contract is intended to constitute or create a relationship of employment between the parties. Accordingly you accept the responsibilities of a self-employed person under the Health and Safety at Work etc. Act 1974 and related legislation and Codes of Practice”.

[122]Each of the lead Claimants also confirmed in evidence that they intended to create a self-employed relationship by signing those terms and that they did not intend to create another type of relationship. Indeed, Dr Green confirmed that he still does consider himself to have been a self-employed contractor when working as an FME.

[123]The Respondent has made the indisputable point, by reference to the biographical, educational and professional information to be gleaned from the Claimants’ Statements of Evidence and other documents, that “the Claimants are not unsophisticated individuals” and are “without exception, intelligent, professional individuals, perfectly capable of reading and understanding the contractual documentation which they signed”.

[124]In his evidence, Dr Green referred to having a standard patter that explained his status when introducing himself to a detainee, along the lines of “I’m Dr Green, I’m paid by the police, I work with them, but not for them”,. He explained that “[m]y independence was expressed in words that were suitably understood by those detainees” . Other employment

[125]Paragraph 3.8 of the 2009 contract was as set out below. “Nothing in this Contract prevents you from undertaking other engagements or employment, except as expressly prohibited in this Contract (see paragraph 4.3(v) and paragraph 6)”.

[126]As such, and in contrast to individuals employed by the Respondent under a contract of employment, FMEs were free to take up any other employment / engagement without the permission of the Respondent and without any obligation to inform the Respondent. This ability had only very limited exceptions, such as appointment as a Coroner / Deputy Coroner or Justice of the Peace, with this being explicable due to obvious conflict of interest issues that explain the exception. Tax and National Insurance under 2009 Contract

[127]As set out above, paragraph 3.6 of the 2009 contract had made it clear that it was the FMEs who were responsible for the payment of income tax and National Insurance contributions and that such tax and National Insurance was payable on the basis of their status as self-employed contractors.

[128]This is consistent with the position of the five FMEs who were interviewed by HMRC in early 2018 who effectively confirmed that they had worked on a self-employed basis “throughout the engagement” and had “never been an employee of the MPS”.

[129]This was also consistent with the answers given by the lead Claimants in evidence. The Claimants were aware throughout that no deductions were being made by the Respondent from their fees, on account of income tax and National Insurance, as would have been the case had they been employees. Nor were the lead Claimants submitting returns to HMRC on the basis that they were employed by the Respondent, and that the payments amounted to employment income / salary. Further, none of the lead Claimants were declaring gross fees received from the Respondent to HMRC and paying tax and National Insurance on such payments. Expenses were deducted first and tax and National Insurance was only paid on a profit figure. Each of the Lead Claimants gave oral evidence to the effect that their tax returns, submitted and supported as they were by signed declarations, reflected their considered and honest view as to their status. Obligations under 2009 Contract

[130]Paragraph 3.7 of the 2009 contract was drafted in terms of there being no obligation to offer or accept work and was in the terms set out below. “The Authority does not undertake or guarantee that any work will be made available to you or as to the amount thereof. If a period “on duty” is offered to you, there is no obligation on your part to accept that period of work. If you decide to accept a period “on duty”, then, unless the provisions for changing that period of duty are complied with you are obliged to undertake that period of duty” .

[131]Danny Hewitt confirmed that the effect of this provision was entirely consistent with his experience of the way that shifts were arranged and worked. He described it as an arrangement which made it very difficult for the Respondent to provide a consistent and efficient service. As the FHS Manager, he would have much preferred the FMEs to be employed in order that the Respondent had a greater degree of control over issues such as rostering. His evidence was that the FMEs “status as self-employed contractors, and the lack of control that this necessarily produced, made rostering a logistical nightmare”. Danny Hewitt considered that this was a consequence the fact that all FMEs were self-employed, independent contractors. However, he was informed that the arrangements could not be changed for that reason.

[132]Paragraph 5.5 of the 2009 contract also referred to FMEs being under no obligation to accept shifts as set out below “Whilst there is no obligation on you to provide services under this Contract, you will liaise with those made responsible for drawing up and co-ordinating an attendance roster for the provision of such services to identify your availability to participate in the roster”. Professional obligations

[133]Under paragraph 3.2 (see above) there were requirements in respect of the FME in terms of being suitably qualified, and fully registered and authorised to practise as a medical practitioner. An FME was also required to exercise “independent clinical judgement” and to practise in accordance with the General Medical Council Codes of Practice.

[134]Paragraph 4.2 stated that it “is an express condition of this Contract that you will, throughout the duration of the Contract, hold full registration with the G.M.C.” . Compliance with guidelines and instructions

[135]Paragraph 3.5 of the 2009 contract was in the terms set out below. “3.5 Subject to paragraph 3.2 above, you agree:(i) to discharge your responsibilities under the terms of this Contract and in accordance with any guidelines on clinical forensic medical practice provided by the Commissioner’s Representative, following consultation with the Commissioner’s Advisory Panel,

(ii) to discharge your responsibilities under the terms of this Contract in accordance with any other guidelines provided by the Commissioner’s Representative, following consultation with the Commissioner’s Advisory Panel, and

(iii) without compromising your impartiality and, so far as reasonably practicable, to comply with any instructions given by officers or staff of the MPS engaged in the investigation of crime for the protection of life or property and/or for the obtaining and preservation of evidence.

(iv) not to act in such a way as might unnecessarily obstruct an officer or staff of the MPS or result in the loss or destruction of forensic evidence or prejudice the evidential value of any such evidence or prevent or interfere with the obtaining of evidence by the questioning of any person who is medically fit for questioning. without compromising your impartiality and, so far as reasonably practicable, to comply with any instructions given by officers or staff of the MPS engaged in the investigation of crime, for the protection of life or property and/or for the obtaining and preservation of evidence”.

[136]The obligation at paragraph 3.5(iii) was qualified in its terms by the caveat “without compromising your impartiality”. Similarly, by paragraph 3.2, these provisions were also effectively subject to, and subservient to, the “independent and impartial clinical judgment” of the FME. Duties

[137]Paragraph 5.5 of the 1996 contract, which had listed the duties required of FMEs, was not replicated in the 2009 contract. Instead, paragraph 5.6 of the 2009 contract dealt with the position in respect of the “FME functions” to be performed by each FME by stating that, whilst “on duty you agree to perform on request any of the FME functions set out in the MPS Healthcare Professionals’ Roles and Responsibilities document”. Undertakings to inform Respondent

[138]Paragraph 4.3 of the 2009 contract set out obligations (in the form of undertakings) which were required of each FME, in terms of notifying the Respondent of various matters occurring, as set out below. “You hereby undertake so to inform the Commissioner’s Representative immediately and in writing in the event of any of the following occurring:(i) you cease for any reason to be fully registered and/or licensed to practise, a member of a medical defence organisation, or indemnified, in accordance with paragraphs 4.1 or 4.2;

(ii) you become subject to any proceedings before the G.M.C., whether or not arising out of your work pursuant to this Contract;

(iii) you are arrested, charged, summonsed or reported for any criminal offence (other than a road traffic offence for which you are served a Fixed Penalty Notice) or you become the subject of any criminal investigation and this fact comes to your knowledge;

(iv) you are prevented by illness or incapacity from providing your services hereunder for a period which has lasted or is expected to last for more than three months;

(v) you accept appointment as a Coroner or Deputy Coroner or Justice of the Peace having jurisdiction within any part of the Metropolitan Police District”. Indemnity insurance

[139]Paragraph 4.2 also made it an express condition of the contract that the FME was and remained either a fully subscribed member of a recognised professional medical defence organisation, or covered by a current and valid policy of indemnity acceptable to the Respondent (“which shall at his request be produced for inspection and confirmation of payment of premiums due”), providing insurance against “any liability you may incur as a result of your provision of the services or the performance of or failure to provide any services … or any act or omission connected therewith”

[140]Whilst this was a requirement imposed on the FMEs under the contract, FMEs were responsible for the cost of meeting this requirement. Assignment to areas

[141]Paragraph5.1 to paragraph 5.4 made provision as to the area within which an FME would work in the terms set out below. “5.1 You will provide services under this Contract within an Area and which Area shall be agreed in writing by you and Forensic Medical Services (“FMS”). Your services will primarily be provided when working within that agreed Area and set out from time to time in a rota management document.

5.2 From time to time when you are providing the services under the terms of this Contract and you may, in cases of operational requirement, be required by any MPS officer of the rank of Inspector or above, or FMS on behalf of the Commissioner’s Representative, to provide the services under this Contract within other Areas within the Metropolitan Police District which is contiguous with that of your Area (except that you will not be required to provide services in an Area in which you hold jurisdiction of any appointment as HM Coroner or Deputy Coroner or a Justice of the Peace).

5.3 The arrangements described in paragraphs 5.1 and 5.2 above may be amended by the Commissioner’s Representative, subject to prior consultation and agreement with you. However, for reasons of operational efficiency, the Commissioner’s Representative retains the exceptional right to determine in his absolute discretion that, from time to time, you provide the services under this Contract in a different Area. In that eventuality the Commissioner’s Representative will endeavour to give you 6 months notice in writing.

5.4 The arrangements in paragraphs 5.1 and 5.2 may include arrangements for the provision of services under this Contract to other policing bodies within Greater London to run concurrently with, and in addition to, the service provided to the MPS. Such other policing bodies will be afforded the same level of service provision as the MPS”.

[142]The effect of these provisions was that an FME’s services would primarily be provided when working within an “agreed” area. That agreement was obtained by the FME indicating in writing on the rota request document the area(s) in which he or she would be prepared to work. This was then effectively agreed by the Respondent through offering work in the area so indicated.

[143]Paragraph 5.3 put in place a mechanism, involving consultation and agreement, for changing the arrangements in paragraphs5.1 and

5.2 by which an FME was assigned to a particular area. In fact, there was no change to the basic arrangements described in paragraphs 5.1 and 5.2 over the material period. Medical records and witness statements

[144]The position in respect of keeping records and recording information was dealt with under paragraphs 4.7 and 4.8 of the 2009 contract.

[145]Paragraph 4.7 of the 2009 contract was in the terms set out below. “You agree that, on every occasion when providing services under the terms of this Contract as a FME you will:(i) promptly make and retain a contemporaneous and adequate medical record of the services performed and relevant findings. You will at all times retain the right to make this record in the form of a paper note, whether or not in addition to making other forms of medical record,

(ii) duly enter the information required to adequately complete records recorded electronically and intended for such use by other FMEs, unless a dysfunction of the system makes this impracticable at the time,

(iii) clearly communicate with a responsible police officer, both orally and in written form (which may be electronic if agreed), sufficient information from your medical record so as to fulfil, so far as is practicable in all the circumstances, your professional duty to ensure the immediate medical safety and adequate ongoing medical care of the persons whom you assess, and in particular to support the management of detainees in police custody,

(iv) duly complete any other necessary official paper documentation,

(v) following a request made by the police for a witness statement, in your capacity as a professional witness as to fact, thereafter make and produce the required witness statement as soon as reasonably practicable”.

[146]Although the preamble to paragraph 4.7 referred to “every occasion when providing services under the terms of this Contract”, paragraph 4.7(v) of the 2009 contract had the practical effect that FMEs could be required, after a shift had finished, to provide a witness statement outside of any shift which they had agreed to work. This was in the sense that, having worked a shift, the request could be made by the Respondent for a witness statement, and the FME was then required to “make and produce the required witness statement as soon as reasonably practicable”, without the need for any further agreement or acceptance.

[147]The obligation to make and retain medical records was further dealt with in paragraph 4.8 in the terms set out below. “With respect to any medical records you create in the form of a paper note when providing services under the terms of this Contract as a FME:(i) they will remain subject to your physical control. They will be subject to the normal regulations and statutory provisions governing medical records, as well as the related principles of good medical practice in recordkeeping promulgated by the G.M.C.

(ii) any guidelines which affects any aspect of their completion, control, or use, which is provided by the Commissioner’s Representative, will be created following consultation with the Commissioner’s Advisory Panel.

(iii) you will be responsible for their retention and secure storage”.

[148]The lead Claimants confirmed in evidence that they would retain their own medical records in relation to their work as FMEs.. The FMEs had responsibility for safe storage.

[149]This gave rise to a legal requirement for ICO registration which would need to be undertaken and paid for by FMEs. Some FMEs complied with that legal obligation, but not all, in that Dr Green and Dr Fairhead said that they were not ICO registered. Confidentiality and the Official Secrets Act 1989

[150]Paragraph 4.4 of the 2009 contract dealt with the issue of confidentiality in the terms set out below. “You hereby agree that any information you acquire in the course of your provision of the services under or by virtue of this Contract, with regard to the practice, procedures or operations of the MPS, individual officers and staff of the MPS and members of the public having dealings with the MPS, is to be regarded as confidential to the MPS (or, as the case may be, the individual concerned or both the individual and the MPS) and must not, whether during the currency of this Contract or at any time thereafter, be disclosed to any person other than with the approval in writing of the Commissioner’s Representative”.

[151]Paragraph 4.6 of the 2009 contract dealt with the issue of Official Secrets Act 1989 as set out below. “You are subject to the provisions of the Official Secrets Act 1989 (“the Act”), as a person appointed for the purpose of the MPS within section 12(1 )(e) of the Act, and you hereby acknowledge and understand the relevant provisions of the Act namely …”.

[152]These provisions were clearly required because of the nature of the duties of an FME and the access that FMEs have to sensitive and confidential information. Security vetting and identity pass

[153]Paragraph 4.13 of the 2009 contract dealt with the issue of security clearance and vetting passes in the terms set out below. “It is a condition of this Contract that your security clearance be renewed every three years and that you co-operate fully in that process. In order to undertake the checks necessary, a security questionnaire will be issued to you, which you will need to complete and return to the Commissioner’s Representative promptly. On successful completion of all the security checks, you will promptly be issued with a new identity pass”.

[154]Vetting was necessary due to the nature of the work that FMEs did and the need for access to secure police areas such as custody suites. Other contractors were also vetted and had access to such areas in order to undertake their duties.

[155]Contrary to assertions made in the Statements of Evidence of a number of the Claimants, but as accepted in cross-examination, the identity pass issued to FMEs was one for independent contractors, bearing a “Z” number accordingly, and not a civilian employee pass. Equipment

[156]Paragraph 5.7 of the 2009 contract was in the terms set out below. “It is your responsibility to provide and maintain, at your own expense and for the purpose of the effective provision of services under this Contract:(i) appropriate personal transport;

(ii) a mobile telephone which, within the normal limits of reliability of such a device, will enable police officers to contact you directly whilst you are providing services under this Contract;

(iii) Such medical equipment as you are frequently likely to require for the provision of your services and which is not (so far as those services will only be provided at a Police Station) readily available in custody suites”.

[157]Paragraph 7.3 of the 2009 Contract was in the terms set out below. “Subject to paragraph 5.7(iii) the MPS on behalf of the Authority will make available the medical equipment and other supplies (including medication) which should normally be readily available in custody suites in accordance with the MPS Custody Standard Operating Procedures”.

[158]Clearly this involved FMEs incurring expenses. There was no ability to claw back these expenses (or any others) from the Respondent. Duties of Respondent

[159]Paragraph 7 imposed further duties on the Respondent in relation to premises, facilities and record keeping, as set out below. “7.1 The MPS on behalf of the Authority agrees to provide at each Police Station or other police premises at which you are regularly required to perform examinations, suitable facilities for so doing, which shall be adequately furnished, lit, heated, kept clean and properly maintained. 7.2 The MPS on behalf of the Authority will provide the means necessary, including record books and forms, for the completion of official records required in accordance with this Contract, and suitable equipment and containers for the taking of samples”.

[160]Paragraph 7.4 further provided that the “MPS will take reasonable steps to ensure that healthcare professionals employed by the MPS in the provision of healthcare services related to clinical forensic medicine will be appropriately qualified, trained and insured to perform that role”. Fees and invoices

[161]The contractual arrangements in respect of payment were as set out at paragraph 8 of the 2009 contract in the terms set out below “8.1 In consideration of your provision of the services under this Contract the Authority will make payments to you in accordance with the Annex. 8.2 The fees shall be reviewed annually. 8.3 You should present an invoice for fees in an agreed form and by an agreed means within 7 calendar days of the end of each month. 8.4 Payment will normally be made within 30 days of receipt of a correct invoice, or as soon as reasonably practicable thereafter”.

[162]Thus, the FMEs received fees for their work and not salary. The fees were outlined in the Annex to the 2009 Contract. Fees were specified as gross sums.

[163]Furthermore, fees would not simply be paid. Payment was subject to an invoice having been submitted by the FME in question. In this regard there was a template supplied by the Respondent together with guidance with which the Claimants were expected to comply. The pro forma invoices referred to FMEs as “vendors” and included provision for VAT to be added where the vendor was VAT registered.

[164]Many of the FMEs chose to prepare invoices, and have fees paid, in the name of limited companies of which they were directors. This was acceptable to the Respondent because of the status of FMEs as selfemployed. 165. it can be seen that, once the 2009 contract had been agreed, the applicable fees were fixed rates which applied to all FMEs. There was no individual negotiation, whether with each FME, or taking account of individual experience, or in respect of different shifts.

[166]However, contrary to paragraph 8.2 above, there was no review of fees on an annual basis, at least in any formal sense, although the Respondent sought to suggest that compliance was effectively achieved through the Respondent considering the matter for itself and deciding not to increase fees. Pension provision

[167]There was no contractual entitlement to any pension contributions from the Respondent so that FMEs made their own pension arrangements and claimed tax relief on the contributions that they made. The Respondent makes the point that, had the FMEs been employees, then there would have been provision for their service to be pensionable. Delegation and substitution

[168]Paragraph 12.4 provided for delegation in the terms set out below. “You may delegate your right to make representations, discuss and consult on your behalf on all matters concerning the provision of your services under this Contract, including the operation and any proposed variation of the Contract”.

[169]Whilst the contract lacked a wider substitution clause, the agreements which the FMEs each entered did not prevent them, or restrict them (in any way), from substituting their labour with another FME from the pool. In practice, FMEs did provide substitutes and often without reference to the Respondent. However, the substitute would be another FME, whether on the basis of shift swapping or informally arranging cover. Removal from rota

[170]There was a contractual power of removal from the rota, as provided for at paragraphs9.1 to 9.3 of the 2009 Contract set out below. “9.1 The Commissioner’s Representative shall have the discretion to remove you from the attendance roster (see paragraph 5.5).

9.2 In the event of being removed from the attendance roster you will be notified by the Commissioner’s Representative in writing and will be entitled to payment of all fees due to you up to the date of removal. You will also be entitled to payment for any statements that you are requested to provide having been removed.

9.3 You are entitled to ask for the reasons for your removal to be put in writing by the Commissioner’s Representative and sent to you within 7 days of the removal. However, this term of the Contract shall not be enforceable if the Commissioner’s Representative states in writing that the reasons for the removal must be withheld for reasons of national security”. Termination

[171]Paragraph 10 of the 2009 contract included the terms set out below. “10.1 You may terminate this Contract at any time by giving at least 6 months notice, in writing, to the Commissioner’s Representative. 10.2 The Authority may terminate this Contract through the Commissioner’s Representative at any time by giving at least 6 months notice in writing. 10.3 Without prejudice to the foregoing, the Authority, through the Commissioner’s Representative and subject to the dispute resolution procedures in respect of sub-paragraphs 10.3 (vii) and (viii), may terminate this Contract at any time without notice and without liability in respect of any period of time after such termination in any of the following circumstances”

[172]The circumstances which were set out as applying in respect of paragraph 10.3 included convictions of a criminal offence, being found guilty of serious professional misconduct, ceasing to be on the GMC registered medical practitioners ceasing to be covered by professional indemnity insurance being adjudged bankrupt. The circumstances also included those set out at subparagraphs (vii) and (viii) as set out below. “(vii) you fail to make yourself (or a suitable replacement) available without good reason during the periods when you are “on duty” or fail to provide any of the services in the MPS Healthcare professionals’ Roles and Responsibilities document competently and diligently in accordance with this Contract; (viii) the Commissioner’s Representative is satisfied that you are not fit to be a FME”.

[173]Although the above termination provisions required FMEs to give six months’ notice of termination of the contract in writing, in practice, this was meaningless, because FMEs could simply opt not to volunteer for any shifts. Rota management arrangements

[174]Documentation was provided by the Respondent setting out rota management arrangements. The version dated 5 August 2009 included the arrangements set out below. “FMEs will be asked to provide their availability. This may take the form of a request for selected days and times or a preferred working pattern. The advantage of the latter is that it provides some predictability for both individuals and FMS regarding sessions that will be covered, but either is acceptable. It is also acceptable for FMEs to consult with others who wish to provide their services on the same sub-area and thereby produce a collaborative document that accommodates the requests of all FMEs for that sub-area. However, in this case, certain principles apply as follow:• The process must be collaborative.

• Each individual FME must still submit an individual rota preference form

• Working patterns may not be imposed on others

• Fairness is not the same as equality. It is therefore not acceptable, for example, to have quotas of day and night shifts that each FME must undertake.

• FMS must be involved in the discussions and will make the final decisions. Rota production and sessions A draft rota will be circulated to all FMEs at least four weeks in advance of the first session on that rota. Rotas will produced to cover three month periods with working patterns being projected for 12 months in advance and produced/circulated biannually. A published rota that incorporates the request for a session by an FME will be confirmation of the offer of that session by FMS and the acceptance of the session by the FME in accordance with the contractual terms. We will take into account

• Fair distribution of work

• Annual amount of work i.e. no full time work equivalence Additionally we will ensure:

• The rota will be created and maintained by FMS rota management team and will be accessible as a live system on the FMS Intranet site. It will also be circulated to FMEs via an email address if so requested. All stations served by the rota have access to the rota

• FMEs will only be deployed in their contractually assigned area unless they are required elsewhere for operational reasons Within two weeks of a rota commencing a request form for availability for the following quarter will be circulated to all FMEs with a response deadline of 15 days. A draft rota will be compiled and circulated to FMEs for confirmation with the final rota being added to the live system 4 weeks before its commencement”.

[175]The same document made provision for the role of the Respondent’s rota management team, as set out below. “Management of the Rota The responsibility for the management of the rota will be undertaken by the FMS rota management team. Following publication of the rotas, FMEs will be required to discuss any queries and changes with the rota management team. All alterations to the published rota must be approved by the rota management team who will arrange for the amendments to be circulated to BOCUs. The rota management team require 10 days notice of any desired changes to the published rota by individuals to facilitate the process of rostering in of replacements. FMEs who wish to change their rostered duty with less notice than 10 days may do so if they provide a replacement FME from the approved MPS list. In these circumstances, FMS will be responsible for the payment for the session worked, which will be made directly to the FME who provided services at the rate attracted by that FME”.

[176]The rota management documents were not stated to be contractual. They were not apt for incorporation into individual contracts. They were simply produced and circulated by the Respondent. HMRC 2009 ruling

[177]HMRC confirmed in 2009 that, based on the terms of the 2009 contract, the FMEs were appropriately considered for tax / National Insurance purposes to be self-employed contractors and not employees. It was stated that the fact that “FMEs would organise shift rotation together (from a small pool of FME colleagues covering a particular area) before the 2009 Contract was implemented” was a strong indicator against employee status. Changes after 2009

[178]In the period from 2009 onwards there was a gradual reduction in the number of FME areas and the introduction of an increasing number of Custody Nurse Practitioners (CNPs), who were employed by the Respondent and permanently based in Police Station Custody Suites.

[179]This process of the introduction of CNPs eventually led to the implementation of a CNP-based model, with the CNPs being employed, that replaced the widespread use of the independently contracted FMEs. This was eventually to lead to the decision in 2020 to terminate the contracts of almost all of the independently contracted FMEs Proposed individual terminations of contract

[180]In February 2013, the then Forensic Healthcare Services Manager had drafted reports recommending that action be taken to terminate the contracts of FMEs who had effectively ceased to work any shifts. The covering e-mail (to Commander Ephgrave) contained the passages set out “Please see attached proposed contract terminations for a number of FMEs. These are by nature administrative measures, rather than disciplinary, for doctors that have not worked for the MPS since the beginning of 2012 or earlier, hence the proposed termination with 6 months notice rather than without notice. Under the Contract for Services the MPS is not obliged to offer any shifts to FMEs who hold contracts and long term this has been the position for these and several other FMEs. As FHS is undergoing a review of its contractors, including the recruitment of new FMEs, I consider it more efficient to weed out the FMEs whose non-working indicates a lack of the requisite commitment that the MPS would ideally want to see in its contractors and these are the first of a number that will be submitted in the near future”.

[181]Each of the reports submitted contained a standard paragraph In the terms set out below. “This doctor has not worked any shifts for the MPS for more than 12 months allowing their vetting to lapse. In January 2012 they were challenged by FHS staff to indicate whether they wished to continue work as an FME but have provided no meaningful response regarding their intentions” 2014 Contract

[182]For present purposes, it can be stated that the 2014 contract was essentially identical to the 2009 contract. For completeness, it can be seen that there were only very limited differences between the 2009 and 2014 contracts.

[183]An Appendix had also been added to the 2014 contract. However, that Appendix simply:(1) set out the qualifying criteria necessary for appointment as a 1st Tier and 2nd Tier FME (although there was no change to the actual criteria from the position prior to 2014); and

(2) identified the annual training and CPD requirements for FMEs and confirmed that this “must be undertaken at the personal expense and time of the doctors” (which, again, did not alter the position from that which applied under the 2009 contract in so far as very similar provisions were published in November 2008 (“Criteria for FME Contracts of Service”), although not contractually incorporated).

[184]The case proceeded on the basis of the Claimants’ concession that there was no material difference between the 2009 and 2014 contracts and, therefore, no material distinction between those Claimants who had signed only the 2009 Contract, those who had signed both the 2009 and 2014 Contracts, and those who had signed only the 2014 Contract. Variation or amendment

[185]Paragraph 12.3 the 2009 contract and the 2014 contract was in the terms set out below. “No variation or amendment to this Contract shall be effective unless recorded in writing and signed by you and by the Commissioner’s Representative”.

[186]There were no such written, agreed, signed variations / amendments to the 2009 or 2014 contracts so that the 2009 / 2014 contracts contain the entire agreement between the parties. Rota management arrangements from 2014

[187]Similar arrangements in respect of managing the rota applied as set out in the Respondent’s document from 2014 entitled “FME Rota Management” which included the paragraphs set out below. “On-going Management of the Rota The responsibility for the management of the rota will be undertaken by the FHS rota management team. Following publication of the rotas, FMEs will be required to discuss any queries and changes with the rota management team. All alterations to the published rota must be approved by the rota management team. A member of FHS will be contactable during office hours to resolve any issues that arise with the rotas. The rota management team require at least 10 days notice in writing of any desired changes to the published rota to facilitate the process of rostering in replacements. FMEs who wish to change their rostered duty with less notice than 10 days may do so if they provide a replacement FME from the approved MPS list. If they are unable to provide a replacement the FME is obliged to undertake that period of duty. FHS will be responsible for the payment for the session worked, which will be made directly to the FME who provided services at the rate attracted by that FME”.

[188]These arrangements meant that if an FME was no longer available to work a shift, he or she needed to give ten days’ notice. If they did not give ten days’ notice they were required to find a replacement FME who could cover the shift. The FMEs were allowed to use any replacement from the list of approved FMEs. The idea behind this arrangement was that if the FME gave the Respondent sufficient time, the Respondent could find a replacement, but if the FME needed to cancel at short notice, it was the responsibility of the FME to find a replacement.

[189]In practice, FMEs would sometimes swap shifts or re-allocate shifts between themselves. For example, if one FME’s availability changed, that FME would often contact a colleague and ask that FME to cover. Once agreed they would then let Respondent know. They did not need to ask permission to swap shifts or arrange cover.

[190]However, although the FME Rota Management document meant that the onus was on FMEs to find cover, in practice the responsibility for finding cover for shifts frequently fell to the Respondent. Often, the Respondent would be informed at short notice by an FME saying that he or she had tried to find cover but had been unable to do so. This left the Respondent trying to find cover at short notice Introduction of new rota management system in 2017

[191]The system before 2017 involved rotas based on templates agreed with the FMEs. There was a template for each geographical area which set out days of the week and four six-hour shifts each day: 0030 hours to 0630 hours; 0630 hours to 1230 hours; 1230 hours to 1830 hours; and 1830 hours to 0030 hours. At one point, the rota templates would be agreed at a meeting with the FMEs for each geographical area. At that meeting, each FME would volunteer for the shifts they wanted to do. Following that meeting, a template was drawn up and the rota was developed from that. The template was intended to be permanent (or at least not changed on a regular basis) so that if the template showed a particular doctor working the 0630 hour to 1230 hours shift on Monday in Area 1, then that doctor would always have that shift. However, the system did not work particularly well as the meetings at which the templates were agreed did not happen very often and were often not effective due to insufficient FMEs attending some of the meetings.

[192]This system caused lots of problems because FMEs would frequently not be available for the shift which they had requested on the template. This could be due to sickness, holiday or any other commitment. As a result, it was often necessary to re-jig the rota to accommodate changes to the shifts.

[193]As a result of the difficulties in preparing the rota which this system caused, Anne Reilly introduced a new system in 2017.

[194]The new system involved Anne Reilly sending a group e-mail to all of the FMEs attaching a blank rota for (usually) a 16-week period about six weeks in advance. The FMEs were invited to indicate on the rota any shifts which they were available to do and their preferred areas. They were also asked to confirm how many shifts they would ideally like each month. Anne Reilly then collated all the completed rotas returned by the FMEs (approximately 90 rotas) to make an overall rota to cover all areas.

[195]The system meant that FMEs did not always get as many shifts as they wanted. However, when she allocated the shifts, Anne Reilly tried to allocate them fairly to the FMEs. For example, if two FMEs had requested the same shift, she would check across the rota for the full 16 weeks to see who had more shifts and would allocate the shift in question to the FME who had fewer. Similarly, if she had four FMEs wanting to do same shift, whilst she could have allocated that shift to any one of them for the full 16 weeks of the rota, in practice she would seek to divide the shifts equally across the 16-week period as she wanted to be fair on the FMEs. This was because it was important to her to keep the FMEs happy. She knew that if they did not get enough shifts from the Respondent some of them would have simply stopped working for the Respondent.

[196]Sometimes individual FMEs contacted Anne Reilly me to complain that they had not been allocated as many shifts as they wanted. This happened increasingly as the number of areas reduced, because the Respondent had the same number of FMEs looking for work. Where an FME complained, Anne Reilly explained that the Respondent could not guarantee any particular shifts (or indeed any shifts) and explained to them that she tried to share the shifts as fairly as possible.

[197]Sometimes FMEs would feel that they were entitled to a particular shift, for instance because they had worked that shift previously, and would ask “why am I not getting my shifts?” In these circumstances, Anne Reilly reminded FMEs that there was no guarantee that they would get the shifts they had requested, even if they had worked that shift previously. However, every shift that the FMEs worked was as a result of them having requested it.

[198]If there were any gaps in the rota after Ann Reilly had collated the availability requests from all the FMEs, she would send e-mails offering these specific shifts. As the FMEs replied she would update the rota to fill in the gaps.

[199]If an FME did not want any shifts, then that was not a problem. They were simply not allocated any shifts for that period. They would then next be contacted when the next blank rota was sent out to all FMEs.

[200]It is to be noted that a third version of the rota management policy document seems to have been created on 5 October 2017 although it was accepted by Dr Green in cross-examination that this rota management policy was not circulated and that he had never seen the document. 2017 review

[201]In September 2017, a review was conducted by the Directorate of Audit, Risk and Assurance Internal Auditor. This was entitled “Risk and Assurance Review of Custody Healthcare Practitioner – Use and Deployment”.

[202]In the review, the position of FMEs was contrasted with the position of the Custody Nurse Practitioners (CNPs) in that “FMEs are employed as contractors by the MPS and are not directly accountable to the Commissioner's Representative via the FHS Department, but as part of their adherence to the standard rules of the medical profession governing bodies and the meeting of the criteria appropriate to FME” whereas CNPs “are employed by the MPS and are subject to MPS terms and conditions”.

[203]The review included the findings set out below. “The control framework is not operating effectively to mitigate key risks. A number of key controls are absent or are not being applied to meet business objectives. In particular, there is a need to develop and articulate a clear strategic approach to the future delivery of healthcare services within the custody environment”. “FMEs are allocated six hour shifts; however, they are not required to be in the custody site for the whole of their shifts and will only be on site following call out by the Custody Officers. FMEs are paid for the full six hours regardless of if they have been called out or not. There are also instances where FMEs who have been called out have not attended or have attended sometime after being requested by Custody Suites”.

[204]The overall conclusion was as set out below. “The control framework is not operating effectively to mitigate key risks. A number of key controls are absent or are not being applied to meet business objectives. In particular, there is a need to develop and articulate a clear strategic approach to the future delivery of healthcare services within the custody environment”.

[205]These findings were consistent with the experience of Danny Hewitt after becoming the Forensic Healthcare Inspector in 2014. He had come to realise, within a relatively short period, that the Respondent had very little control over the FMEs. In particular, they were able to cancel shifts at short notice, with little that the Respondent could do to stop them. This frequently created resourcing problems HMRC investigation

[206]HMRC commenced an investigation in late 2017 as to the status of FMEs.

[207]A number of FMEs were interviewed as part of the investigation and their anonymous responses appeared in the Bundle.

[208]All of the FMEs who were interviewed by HMRC expressly confirmed that they were “an FME with the MPS, working on a self-employed basis” and that they had “never been an employee of the MPS”.

[209]The responses given by those FMEs interviewed include the responses set(1) “The intention … was always that the engagement was of a selfemployed nature”.

(2) “The contract was agreed with the MPS HR department…. [He] stated that the contract was between his company and the MPS. [He] confirmed this and stated that the contract says that it must be with a Ltd Company incorporated as a supplier. [Janet Owen of HMRC] stated that the contract held showed [his] name as an individual. [He] said that this was an admin error as the MPS must have him shown as a Ltd Company to allow them to make payments to a Ltd Company. She added that the invoices are all from the Ltd Company. ]He] had already engaged [his] company as his agent at this time. [He] had started working with the MPS in February 2015 as a locum. He was also working with other locum agencies, e.g. Birmingham Prime Care Company. In the summer of 2015, [he] stopped working with other locum agencies and has since worked exclusively for the MPS. [He] de-registered for VAT at this time. The accountants arranged the setting up of the Ltd Company …. The directors of this company are [him] and his wife … (previously the company secretary)”.

(3) “[He] advised that in highly stressful difficult situations, he had to act ethically and impartially. He worked as an independent professional and had to demonstrate this to the detainee”.

[210]In relation to the extent of any obligation to undertake shifts, the responses given by those FMEs interviewed include the responses set out below.(1) “He chose where and when to work … He would populate the MPS system with his preferred shifts … He would confirm his availability, usually requesting two, three or four session per week … Sometimes he did not get the requested shift as MPS had allocated that shift to another FME as their preferred choice. [He] could cancel his shift if his commitments had changed…. He would send an e-mail to the MPS asking them to re-assign the shift…. As stated above, work was undertaken at [his] convenience and choosing. [He] could refuse work. He did not need to offer any reason for refusing work, he simply did not fill in the spreadsheet. There were no issues if he did not populate the spreadsheet. If the MPS contacted him to cover another FMEs cancelled shift, he could simply say no”.

(2) He chose where and when to work … sometimes he would not get the requested shift as MPS had allocated that shift to another FME as their preferred choice. Two months ago he started losing shifts. There is now an excess of FMEs available.… [He] could refuse work. He did not need to offer any reason for refusing work, he simply did not fill in the spreadsheet. There were no issues if he did not populate the spreadsheet. If the MPS contacted him to cover another FME’s cancelled shift, he could simply say either yes or no …”.

(3) “[He] could refuse any work by simply not applying for any shifts. No reason would be needed for this. There were no issues if he did not populate the spreadsheet…. [The interviewer] queried what happened if he had requested a particular shift, but could no longer work it when the rota was subsequently released. [He] stated that there was nothing the MPS could do as it was just the way it was…. [The interviewer] asked what would happen if the FME was sick and unable to work. [He] said that sickness absence tended not to be as high in self-employed workers as in employee workers as if you did not work, you did not get paid. He stated that if an FME was sick and could not attend at short notice, then they would speak to another doctor to arrange cover. The other doctor would have to be an approved FME on the MPS list …”. HMRC review

[211]HMRC expressed an “initial impression” / preliminary view on 9 October 2018 that the FMEs may have evolved over time – at some unspecified point between 2009 and 2018 – and were by 2018 “likely to be employees”. The position asserted by the Respondent is that this was a view that was legally flawed, not least because the contract that was in force in 2018 was in materially identical terms to that in force in 2009. Indeed, for many of the FMEs, it was the 2009 contract that remained in force. There had been no significant change in the working conditions or practices of FMEs over that period. Indeed, the Claimant’s case was not based on asserting a change in status in the period from 2009 to the date of termination of the contracts.

[212]HMRCs “initial impression” was contested on behalf of the Respondent with detailed grounds being set out for so doing. HMRC decision

[213]HMRC issued a further “Opinion” on 3 April 2019, from a Higher Officer in Wealthy/Mid-Sized Business Compliance, to the effect that the FMEs should be treated as being employees.

[214]Under a heading in respect of the intentions of the parties, it was “acknowledged that the mutual intention of all parties was probably one of self employment it is nevertheless the reality of the situation that matters” and it “is only if all the factors are equal that the intention of both parties will become a decisive factor in deciding employment status”. In this regard, it was stated that the Respondent “will gather from my comments herein that I do not consider all factors are equal in this case”.

[215]The conclusion reached was set out under the heading “Opinion”, as set out “I am still of the opinion that all workers engaged on the same terms and conditions as the painters [sic] were employees of your client from 6 April 2014 to date and as such should have been paid under deduction of PAYE/NIC. To sum up:• Your client has a right of control over the FME’s an element of which is exercised.

• I do not consider that the workers incur significant financial risk.

• The irreducible minimum of mutuality of obligation referred to under the above sub paragraph heading Miscellaneous is satisfied.

• The other factors present are consistent with a contract of service My opinion is based on the facts/information obtained during the course of the review and in the absence of any further evidence or information in respect of the workers terms and conditions this will remain as that of employment”.

[216]The Respondent seeks to make the point that FMEs had continued to work under either the 2009 contract, or the materially identical 2014 contract, which HMRC had determined in 2009 amounted to a self-employed contractor contract.

[217]The difference in outcome from that reached in 2009 was explained in the letter in the terms set out below. “You have mentioned the status ruling that was provided in January 2009 … and that it had been agreed that although there were some concerns at that time over control, HMRC would continue to accept that the categorisation of the FME’s would remain as Self-Employed, however, should the working practices change, then the status of the FME’s would have to be reviewed again, and could possibly change. You have stated that there have been no changes in the working practices, however, I disagree with this”.

[218]The letter ended by suggesting that the matter should now “proceed towards settlement”. Challenge to HMRC

[219]On 6 June 2019, Solicitors for the Respondent wrote to HMRC by way of a Judicial Review Pre-Action Protocol Letter intimating an application for Judicial Review of the decision of HMRC's Wealthy/Mid-Sized Business Compliance in relation to its revised approach to the employment status of FMEs.

[220]The basis for the intended application was that the Respondent contended that HMRC had acted unlawfully in seeking to re-categorise FMEs as employees for the purpose of a retrospective Income Tax / National Insurance contributions assessment, notwithstanding the previous decision taken in January 2009 that FMEs were not to be treated as employees and the Respondent’s reliance on that ruling.

[221]The Respondent had also separately sought to appeal the decision indicated in the 3 April 2019 HMRC letter. Settlement with HMRC

[222]A commercial settlement was reached between the Respondent and HMRC, on the basis set out below. “MPS shall have no liability for tax for FMEs, whether tax or National Insurance contributions (NIC), for the period to 1 October 2019. For the period 1 October 2019 to 30 September 2020, the FMEs shall be treated as if employees and the MPS shall make tax/PAYE and NIC payments to HMRC accordingly for that period”.

[223]There was no concession made by the Respondent that the FMEs were in fact employees. The agreement was that they were to be treated as if they were employees for a short period as a mechanism for calculating the sum agreed in settlement.

[224]Further, the agreement stated: “for the period from 1 October 2020, MPS is working to implement as soon as possible changes to its structure under which the FME service will be outsourced to a third party at which time it will no longer make payments to the FMEs” but, in the event “that those changes are not implemented by 1 October, then MPS will continue to make quarterly payments on account … and the process agreed … shall continue to apply on a rolling basis until the contemplated changes have been introduced”.

[225]The settlement reached between HMRC and the Respondent meant that the matter never proceeded either to Judicial Review proceedings, which had otherwise been intimated on the basis set out in the pre-action letter, or to a hearing before the First-Tier Tax Tribunal. In short there was no judicial determination of the status issue. Notice of termination of Contract

[226]In October 2020, the Respondent wrote to FMEs giving notice of the termination of their contracts in the terms set out below “Changes to the Forensic Medical Examiner Services 2009 Contract As I am sure that you are aware, many parts of the provision of Custody Services within the Metropolitan Police Service (MPS) have been subject to intensive review over the last three years. One of the areas is the provision of Healthcare Services within Custody suites and the production of a Healthcare Improvement Plan. A consultation process was undertaken, including all key stakeholders and with a cost/benefit analysis at its core. This process was highlighted to you in communication from Detective Chief Superintendent (DCS) Ivan Balhatchet distributed in July 2019, and welcomed your comments. After much consideration, it was decided to implement a new method to provide Healthcare Services. This method is based around a nurse-led model with 24/7 embedded healthcare professionals and improved healthcare information technology, which fits with best practice established by other forces outside the MPS and meets the aims of the review in the best possible manner. It will provide an efficient, cost effective service with the benefit of embedded healthcare professionals enabling clinical handovers and earlier healthcare intervention, reducing risk to the most vulnerable detainees. Since 2009, the MPS has been recruiting nurses into Custody Nurse Practitioner (CNP) roles. The new model requires around 100 CNPs to provide the cover required and will see the Forensic Medical Examiner (FME) requirement reduce over the next six months. Although there have been some delays due the current unique circumstances that have taken place in 2020, we are expecting to reach our recruiting target by April 2021. Over the coming months, CNPs will gain extra responsibilities around the safe, supply of medicines, with support being provided via a telephone based system giving the CNPs additional support and guidance from an FME, should it be required. As a result of this new method, the requirement for FME support to Custody Suites will be dramatically reduced and therefore regular FME posts will no longer exist within Met Detention. Therefore, all ongoing FME Contracts will be cancelled as of 30th April 2021, terminating your engagement with the MPS. I hope that you can understand that this decision has not been taken lightly and has been the result of an extensive consultative process. May I take this opportunity to thank you for your service with the MPS. I am truly grateful for your dedication and professionalism, which has kept our vulnerable detainees, often with complex and challenging health and welfare issues, safe over the period of your service”. New arrangements

[227]From April 2021, the Respondent stopped engaging with FMEs directly, and instead began engaging them through a third-party employment agency. Status in practice

[228]Throughout the course of their engagement, the status of the FMEs as selfemployed contractors was consistently emphasised in various noncontractual documents, include the references set out below.(1) “All doctors providing services as Forensic Medical Examiners are contracted to the Metropolitan Police Authority as independent contractors and their services are provided as professional doctors exercising an independent clinical judgment” (Notes for Guidance: Complaints against members of the MPS Forensic Medical Examiners Service: February 2003).

(2) “All doctors providing services as FMEs are contracted to the Metropolitan Police Authority as independent direct contractors … and their services are provided as professional doctors exercising an independent clinical judgement” (Forensic Medical Examiners Dispute Resolution Process: 20 July 2009).

(3) “FMEs are employed as contractors by the MPS and are not directly accountable to the Commissioner's Representative via the FHS Department, but as part of their adherence to the standard rules of the medical profession governing bodies and the meeting of the criteria appropriate to FME” (The Risk and Assurance Review of Custody Healthcare Practitioner – Use and Deployment conducted by the Directorate of Audit, Risk and Assurance Internal Auditor in September 2017). Operation of rota in practice

[229]Although the Respondent states that there was no obligation on the Respondent to send out a rota request form in respect of any particular period, in practice, the Respondent did so, because this was the system which it had in place to ensure that custody suites were covered by FMEs.

[230]FMEs were under no obligation to bid / apply for any shifts when the rota request form was circulated, so that they were free simply not to submit the form and apply for no shifts. There would be no sanction if an FME did not complete the rota request form.

[231]There were occasions when Anne Reilly would send a ‘chaser’ e-mail requesting a response to the rota template e-mail. In her evidence, Anne Reilly explained that she was simply checking if the FME concerned wanted any shifts as he or she usually responded. Thus, it was a matter of courtesy and consideration and not compulsion.

[232]It was entirely a matter for FMEs to decide whether to apply for shifts and, if so, for how many (there being no minimum or maximum number for which they could apply). FMEs simply applied for shifts that suited their own personal circumstances with those circumstances sometimes changing over the course of their engagements as FMEs.

[233]Whilst there was no contractual obligation on the Respondent to give the FMEs any shifts / work in a particular period, the evidence of Anne Reilly, which the Tribunal accepted, was that the Respondent sought to do so in terms of allocating shifts each month to every FME who had requested shifts.

[234]However, there was no guarantee of any shifts or shifts on a particular date. There were occasions on which FMEs were allocated no shifts in a month, despite requesting shifts (Dr Green suggested in evidence “sometimes that was the way the cookie crumbled”). However, the evidence of Anne Reilly was clear that gaps of a month would only happen as an error, and such would be rectified immediately after apologies were made.

[235]There was no contractual obligation on the Respondent to distribute shifts between FMEs reasonably (Dr Green accepted that the attempts made to distribute shifts fairly were simply because the Rota Management Team, particularly Anne Reilly, were “reasonable and fair people”). If two FMEs applied for the same shift, in the same area, one of them would inevitably be disappointed.

[236]The Respondent could not compel an FME to work a particular shift or work in a particular area. The FME would simply insert a number, which corresponded to an area, in the box for a particular shift time on the rota proforma. The Respondent would then decide whether or not to accept the FME’s offer to work that shift in that area. There was no scope for the Respondent to dictate that an FME work in a different area on the requested date and time. FMEs were free to apply for work in any area in that it was entirely the choice of the FME

[237]There was no obligation on an FME to accept a ‘gap’ shift that was offered and accepting such a shift was entirely voluntary.

[238]Some FMEs worked irregular shifts with periods of time with little or no work. Some FMEs offered no availability for long periods of time, Many FMEs worked no shifts at all in particular months. FMEs could simply decide to undertake no shifts for a prolonged period of time (as did, for example, Dr Green, Dr Capper, Dr Stark and Dr Sarkar, for a variety of reasons), with this being achieved by the FMEs simply not completing the rota request form when it was received (this was also confirmed by all of the FMEs who were anonymously interviewed by HMRC)..

[239]In practice, a number of the FMEs who had signed contracts were inactive and routinely did not provide any availability. There was an example from 2013 where steps had been taken to terminate the contracts of FMEs who had effectively stopped providing services. However, many FMEs had significant breaks when they paused working for the Respondent. For example, Dr Stark had a period of absence of over three years from the rota, from May 2011 to August 2014, when she moved to Australia, before returning to the UK and resuming working ‘variable’ shifts for the

[240]The reality appeared to be that, at any one time, a number of FMEs were likely to be inactive for their own personal reasons. This could simply be achieved by not completing the rota template document in a particular rota cycle. The Respondent did not consider that it could compel FMEs to do so. Danny Hewitt suggested that this would have been pointless anyway since the Respondent “we were aware that the FMEs had no obligation to undertake any shifts”. However, the evidence does suggest that FMEs would inform the Respondent if they were going to be away on holiday.

[241]However, there was no obligation on the FMEs to liaise with the rota management team and complete a rota request form if they did not wish to work any shifts in the relevant period. The effect of the answers given by the FMEs who were anonymously interviewed by HMRC was that they did not need to offer any reason for refusing work in that it was sufficient simply not to fill in the spreadsheet and there were no issues if they did not populate the spreadsheet.

[242]It was not necessary for the FMEs to liaise personally with those drawing up the roster as this could be done, without objection, by someone on the behalf of the FME (such as another individual working for the corporate vehicle through which the services of the FME were invoiced). Thus, many of the FMEs deducted and set-off secretarial expenses that could only have been for tasks such as rota liaison, record production / retention tasks and statement production tasks (as in the case of Dr Fairhead who deducted sums in excess of £6,000 per annum for secretarial expenses on an annual basis during periods when her only work was as an FME for the Respondent). Effect of the acceptance of shifts in practice

[243]Paragraph 3.7 of the 2009 contract had stated that once an FME accepted a period ‘on duty’ then, unless there was compliance with the provisions for changing that period of duty, the FME was obliged to undertake that period of duty.

[244]The arrangements for changing rostered shifts were that:(1) shifts could be (and were) handed back by FMEs at will for no reason up to 10 days before the shift, and the rota team would obtain a replacement;

(2) shifts could be (and were) handed back by FMEs at any time in the event of illness and other unforeseen circumstances;

(3) FMEs could (and did) find their own replacement FME to cover the shift and thereby hand back the shift within ten days of the start time;

[245]Thus, FMEs could cancel any, or all shifts, for any, or no, reason upon receipt of the draft rota. FMEs could also freely cancel any shift, for any, or for no, reason, more than ten days prior to the scheduled date. The various rota management documents formulated and circulated by the Respondent over time stated that it was responsibility of the FME to arrange a replacement in order to cancel a shift within ten days of the scheduled date. Indeed, the evidence of Anne Reilly confirmed that there was an expectation that FMEs would perform shifts if they did not get a replacement. There was at least the possibility of the sanction of being removed from the roster if such expectations were not met. However, there was no occasion on which any of the FMEs had been compelled to undertake a shift having been unable to arrange a replacement in that a replacement would be found by Anne Reilly or the shift would be covered by use of the cross-cover arrangements. In these circumstances, it was a regular occurrence for FMEs to cancel shifts, sometimes at short notice (accepted to be relatively rarely in the case of most FMEs).

[246]The pleaded case of the Claimants suggested that there was an unwritten rule that if an FME cancelled any ‘on duty’ periods, they would be removed from the rota. The evidence did not generally demonstrate this to be the case. Anne Reilly confirmed in cross-examination that there was no such unwritten rule.

[247]However, in the case of Dr Payne-James, action had been taken. In June 2018, Anne Reilly had spoken to the Medical Director, Dr Meng, and explained that Dr Payne-James’s frequent cancellations were having a significant impact on the operation of the rota. In the first half of 2018 he had cancelled 46 shifts, of which 35 were cancelled with less than ten days’ notice and seven of those 35 were in fact cancelled on the day of the shift in question. His position, in his Statement of Evidence, was that these cancellations were because of a number of court commitments meaning that he could not fulfil his sessions. However, the issue for the Respondent appears not to have been that of the reason for the cancellations, but the short notice. It was decided that Dr Payne-James would not be allocated any shifts for the coming period which was 16th July to 11th November 2018 and he was written to with confirmation of this on 30 June 2018. This was an isolated example of such action being taken. In fact, this seems to have resulted in a meeting being arranged with Dr Payne James with the outcome being that he was still not allocated any shifts for the period concerned as originally planned but was able to apply for any gaps which became available in the rota.

[248]Clearly, once a shift started, an FME would be expected to complete the shift. Cross-cover and additional cover

[249]Sometimes it was necessary to ask an FME to cover two areas on the same shift (which was a practice called “cross-cover”) and involved the FME being paid for both shifts – effectively doubling their shift rate – to cover an additional area. Cross cover happened where there was no FME available to cover an area; for example, if the FME who was rostered to do the shift was sick or cancelled and the Respondent was unable to find another FME to cover the shift

[250]Another situation which arose was where there was a shortage of nurses (CNPs) leaving a custody suite in an area uncovered. In those situations, the Respondent would ask an FME in the neighbouring area to be on alert to cover outside the geographical area if necessary. If this FME then attended a Police station outside their assigned geographical area, he or she would be paid for time spent at that station on top of the usual shift rate. So, if an FME worked a normal six-hour shift, but attended a station outside the allotted geographical area for two hours of that shift, the FME would be paid a total of eight hours (six hours for their normal shift, plus two hours for covering the neighbouring area).

[251]The payment mechanism subsequently changed so that if an FME agreed to cover one specific custody suite outside their geographical area, they would be paid eight hours for a shift of six hours, even if they were not required to go outside their geographical area. Extent of any obligation to accept or undertake work in practice

[252]In evidence, the extent of any obligation to accept or undertake work had been put to Dr Green. His evidence was to the effect that there was no obligation on him to accept any work. FMEs could simply decide not to complete the rota proforma. It was entirely a matter for the FMEs to decide which shifts to offer to work, or to offer no shifts, in any rota cycle, entirely dependent on their own circumstances. Dr Green could, and did, choose which shifts to work, if they were offered by the Respondent. He had reduced his shift requests to about two to four per month in 2017 because it suited his personal circumstances. He had decided to stop working / offering shifts in March 2020 (due to the pandemic) and did not return to undertaking shifts before the contract was terminated on 30 April 2021. He was under no obligation to accept any shift that was offered to him. He could not be compelled / instructed to work a particular shift or in a particular area. However, Dr Green accepted that he could not dictate that the Respondent offer him a shift at a particular time in a particular area.

[253]Broadly speaking, this was consistent with the answers given by FMEs who were interviewed anonymously by HMRC, which included answers to the effect that if an FME did not want to work for a particular period, he or she simply did not fill in the spreadsheet. There was no need to offer any reason for not doing so and there were no issues if he or she did not populate the spreadsheet. . Variability of shifts worked

[254]The Claimants produced individual spreadsheets which were largely completed on the premise that the information being provided was indicative of regular shift patterns being worked. While some of the lead Claimants had a regular shift pattern, with others, the shifts worked varied significantly not only from month-to-month but from year-to-year.

[255]However, even with those FMEs who had a more regular shift pattern, there was still a significant degree of flexibility by which there was the option to vary the shifts that they offered to work during different periods.

[256]On behalf of Dr Payne-James, it was asserted that, following signing the 2009 contract in January 2009, he had continuously worked the same or similar shift pattern in that he would submit rota session requests (for sixhour sessions) and worked at least eight nights, and eight day shifts every month. However, the maths did not necessarily support this generalisation. Thus, for the years 2019 and 2020, the average weekly hours worked were 11.7 per week. Other years showed an average of just under 17 hours per week.

[257]Dr Capper’s case was that he initially worked one session (of six hours) each week from July 2005, with the occasional extra shift on a weekend. From March 2006, he suggested that this had increased to 1.5 shifts (in other words, nine hours) every Tuesday. From January 2007, he stated that he had increased his shifts again (to 12-15 hours every Monday). From around January 2010, he claimed that he was regularly worked two shifts every Monday with one to two shifts on occasional weekends. This continued until about June 2017, when he stated that he had added an extra shift on a Wednesday. Thus, his case was that, by and large, he worked the same shift pattern every month. However, an analysis of shifts actually worked by Dr Capper suggested that there was actually far less regularity to his shift patterns than had been asserted. Moreover, Dr Capper had a period of around nine months, from April 2020 to January 2021, when he undertook no shifts.

[258]Dr Sarkar’s position was that he worked the same shifts every week, regularly working six to twelve hour shifts on Friday, Saturday and Sunday each week and would sometimes work shifts on a Tuesday or Wednesday. Again, more precise analysis of the shifts worked demonstrated a significant degree of variability. Moreover, for the period of over 17 months, from his last shift on 17 November 2019 until the termination of the Contract with effect from 31 April 2021, Dr Sarkar decided not to offer, or work, any shifts for the Respondent for a variety of personal and family-related reasons.

[259]Dr Fairhead completed her spreadsheet to the effect that she regularly worked between six and 36 hours of shifts every month. The Respondent pointed out that working a range between one shift and six shifts every month could not be described as “regular”. In her evidence, Dr Fairhead accepted she changed her desired shift pattern at various times to suit her own personal circumstances.

[260]On behalf of Dr Forkuo, it was suggested that he had regularly worked 12- hour night shifts with occasional 12-hour day shifts every month, although such a statement was non-specific as to the numbers of shifts involved. Again, more precise analysis of the shifts worked suggested that there was a significant degree of variability as to his pattern of working. Dr Forkuo would come up to London from Plymouth to undertake shifts and so would arrange shifts to cover a period when he was in London.

[261]On behalf of Dr Green, it was asserted that he had regularly worked 15 to 17 sessions every month, reduced to between two to four sessions each month from 2017 onwards. However, for the period of over 13 months, from 23 March 2020 until the termination of the Contract with effect from 31 April 2021, Dr Green decided not to offer, or work, any shifts for the Respondent on account of his need and / or desire to shield.

[262]Taking the spreadsheet of shifts that were worked by all contracted FMEs in the 6-month period from July to December 2018. It can be seen that four FMEs undertook absolutely no shifts during the entire 6-month period. A further ten FMEs undertook no shifts in one or more months over the 6- month period. Not a single FME worked the same number of shifts each month over the 6-month period. For those FMEs who did work some shifts in a month, the number ranged from one to 53 shifts. In summary, there were significant variations in shifts worked by different FMEs and in shifts worked by FMEs across different months. Standard Operating Procedures

[263]Some Standard Operating Procedures (SOP) applied to the FMEs, for example the Security, Administration and Disposal of Medications in Police Custody. The fact these applied was not so much because of the nature of the FMEs work, but because of the fact the work was taking place within a custody environment where the Respondent had legal responsibility for the safety and welfare of detainees, and because the Respondent had legal obligations in respect of the safeguarding of medication.

[264]Even though FMEs are now supplied through an agency, they are still required to comply with such policies. Medication

[265]There was no restriction on FMEs from prescribing whatever medication they considered to be appropriate, thereby exercising their own “independent and impartial clinical judgement” in accordance with paragraph 3.2 of the 2009 contract. If the medication was held in the medicine cupboard in the custody suite, then it would be dispensed from the medicine cupboard, whereas if the medicine that the FME chose to prescribe was not held, then it would be obtained from a chemist. Recording information

[266]FMEs were expected to use the National Strategy for Police Information Systems (NSPIS) arrangements for recording information relating to cases electronically. It was obviously necessary for information that pertained to the safety of detainees, including medical issues, to be recorded on the NSPIS system.

[267]Such entries on NSPIS should be distinguished from the medical notes which FMEs made during consultations. These were held confidentially by the FMEs themselves as data controllers. Equipment

[268]FMEs had to provide their own equipment pursuant to paragraph 5.7 of the 2009 contract. Whilst the Respondent did provide equipment in custody suites (pursuant to paragraph 7.3 of the 2009 contract), FMEs frequently preferred to use their own equipment which they brought with them. Disputes Procedure

[269]FMEs were not subject to disciplinary procedures or potential disciplinary sanctions as they were not employees or workers. However, given that the FMEs were providing services to members of the public, and to Police Officers / civilian staff members, often in tense and stressful circumstances, it was recognised there was clearly the potential for complaints to be made against FMEs and a Complaints Procedure had been implemented and periodically revised. The Complaints Procedure from 2003 confirmed the status of FMEs as independent contractors. By 2013 this had morphed into a Disputes Procedure for dealing with complaints that arose about FMEs. This was a straightforward procedure by which FMEs were given an opportunity to comment about a complaint, if they so wished, with the complaint then being determined on the papers. The Disputes Procedure confirmed the position in respect of the status of FMEs in the terms set out “All doctors providing services as FMEs are contracted to the Metropolitan Police Authority as independent direct contractors or occasionally contractors through an agency and their services are provided as professional doctors exercising an independent clinical judgement” Training

[270]It was accepted in evidence that FMEs were required to book, and fund CPD training themselves. Thus, courses would be done in an FME’s own time and at an FME’s own cost (tax deductible against income) but using whichever provider and at whatever time convenient to the FME. Outside training organisations were used for the vast majority of these courses. However, there were occasions when the Respondent might allow FMEs access to its courses, sometimes billing back the cost of the course to the FME.

[271]There was evidence of a one-off exception when a new computer system, System One, was introduced, with FMEs being paid by the Respondent a separate fee of £250 to attend the offices of a third party to have training on that course. This seems to have been because it was a system introduced by the Respondent. However, whilst the cost of the training was met by the Respondent, the effect of the arrangement was to pay the FMEs an additional fee. Other sources of remuneration

[272]The contractual provisions (see paragraph 3.8 of the 2009 contract) allowed FMEs to undertake other engagements or employment elsewhere. All of the lead Claimants took advantage of this freedom, to a greater or lesser extent. Some, most notably Dr Payne-James and Dr Sarkar, had extremely complex portfolios of work. The company accounts of Payne-James Limited described this wide range of work as being for “customers”, with this description including the Respondent. Details of the business and other activities of Dr Payne-James were evidenced by extracts from a blog which he wrote for his website and which demonstrated extensive other interests of which FME work formed only a part.

[273]Equally, there are examples of FMEs who worked exclusively for the Respondent (although they would have been free to have diversified their income streams through other remunerative activities). Receipt and taxation of payments

[274]It was a major plank of the Respondent’s case that the manner in which the FMEs addressed their tax affairs was a powerful indicator that they were not, and never considered themselves to be, employees of the Respondent, but were in business on their own account.

[275]However, the arrangements which were put in place by each lead Claimant in order to receive payments in respect of their FME work varied from lead Claimant to lead Claimant. Receipt and taxation of payments: Dr Forkuo

[276]In the case of Dr Forkuo, FME income was paid to PF Forensics Limited (along with other income streams such as that from a mobile sedation business) and was accounted for by that company, deducting relevant expenses (namely hotel and travel expenses incurred by Dr Forkuo when coming up to London from Plymouth to undertake shifts). Dr Forkuo was an employee of PF Forensics Limited and received a modest employment income from that company. He had a PAYE code in respect of this employment. He also received much larger dividend amounts each year as a shareholder of PF Forensics Limited with this being taxed at more favourable rates than those applicable in respect of employment income. Dr Forkuo also completed employment tax sheets for ABM University NHS Trust, but that was entirely separate to his work as an FME.

[277]Dr Forkuo explained that he was the sole director of PF Forensics, and that his wife was employed as a secretary. He explained he was the majority shareholder, and that his wife had a “very small” share. The amount of money he paid himself was decided by his accountancy firm, and he accepted that he simply “used the company for [his] personal expenditure”.

[278]Dr Forkuo accepted in evidence that he was representing to HMRC that he was employed by PF Forensics Limited and that PF Forensics Limited was engaging with the Respondent for the provision of FME services. Although Dr Forkuo did not disclose the accounts of PF Forensics Limited, he accepted in evidence that those accounts would show PF Forensics Limited setting off expenses for items such as travel, insurance, car, phone, accountancy. He would not have been able to set off those sums if he had declared employment earnings from the Respondent.

[279]Dr Forkuo further confirmed in evidence that he also worked as a selfemployed FME for the Police in Wiltshire. Receipt and taxation of payments: Dr Payne-James

[280]Similarly, in the case of Dr Payne-James, all of the FME income payments received after 2010 were paid to Payne-James Limited and declared to HMRC on that basis. Dr Payne-James had a wide portfolio of work, including the FME work, completion of expert witness reports and appearing as an expert witness, conducting training, speaking at seminars and writing textbooks and papers. Payne-James Limited also received income from much of this other paid work (such as his work as a medico-legal / expert witness). The FME income was accounted for by Payne-James Limited along with that other income, deducting relevant expenses. In the accounts, fees from the Respondent and other organisations from which PayneJames Limited was receiving fees from the work of Dr Payne-James, were described as fees for the “sale of goods and services to customers”. The company employed 5-6 employees to assist Dr Payne-James. Dr PayneJames was also an employee of Payne James Limited and received minimal employment income from the company. He had a PAYE tax reference through Payne-James Limited. However, Dr Payne-James was also the sole Director of Payne-James Limited and the major shareholder. There was no written contract of employment in place and no formal separation of his activities between those undertaken as an employee and those undertaken as a director. As a shareholder, he received a large dividend from PayneJames Limited. Clearly, these were arrangements which were in place to secure favourable rates of personal taxation.

[281]When cross-examined, Dr Payne-James accepted the analysis that, from March 2010, he contracted with the Respondent as an agent for Payne James Limited and that the company, as principal, received the income and accounted for it accordingly. Dr Payne-James confirmed this is what was represented to HMRC and that he believed this to be a true picture.

[282]Payne-James Limited was setting off expenses such as travel expenses, salaries, insurance, administration expenses and accountancy fees against profits

[283]Dr Payne-James did declare self-employed income. However, this was not derived from his work as an FME but was from his work as a lecturer.

[284]Dr Payne-James accepted in evidence that, through his personal tax returns, he was representing to HMRC that:(1) he was an employee of Payne-James Limited;

(2) he was engaged with the Respondent as an agent of Payne-James Limited;

(3) it was Payne-James Limited, as the principal, that was receiving the payments from the Respondent;

(4) the fees from the Respondent were put into the Payne-James Limited pot along with monies from a whole range of other business activities;

(5) he received a small salary from Payne-James Limited, as an employee of Payne-James Limited which was taxed as employment income;

(6) he received a larger dividend payment from Payne-James Limited as a shareholder which was taxed at a more favourable rate than employment income. Receipt and taxation of payments: Dr Capper

[285]In the case of Dr Capper, until 2016, FME income was declared as selfemployed income. He was receiving favourable tax treatment as a result and was able to set-off expenses that he would not have been able to setoff as an employee. His employment income and partnership tax return sheets were nothing to do with his work as FME but were in relation to other work as a doctor.

[286]On 4 April 2016, Forensics Medical Limited was incorporated and income from his FME work was then paid to that company. The money went through the company’s accounts, with deductions for relevant expenses being made. Dr Capper was an employee of Forensics Medical Limited and received a minimal salary. One of his children was also employed as the company secretary. As a shareholder he received larger dividends, with this arrangement attracting more favourable rates of personal taxation. Receipt and taxation of payments: Dr Sarkar

[287]Dr Sarkar failed to disclose any documents evidencing his tax affairs, whether his personal returns or those relating to the many limited companies and LLPs with which he had or has an involvement, despite the request for such documents first being made in July 2022. He explained that his accountant had lost all of his tax records, apparently in the course of moving office, and that he could not obtain copies of the same for disclosure. However, he also accepted in cross-examination that he had made no attempt to retrieve the relevant documents, for example from HMRC.

[288]In any event, the Respondent had been able to piece together a picture from publicly available documents.

[289]Prior to 2016, Dr Sarkar’s FME earnings were declared for tax purposes as part of the earnings of a family partnership. UUU LLP was then incorporated on 3 May 2016. This corporate entity then received the money from the FME work from that point. Its members at various times were U Sarkar Limited, Questere Limited, Uttara Sarkar (the wife of Dr Sarkar) and Dr Sarkar. In evidence, Dr Sarkar accepted that the accounts for UUU LLP effectively accounted for the sums paid for his work as an FME, but those accounts had not been disclosed. Receipt and taxation of payments: Dr Green

[290]Similarly, in the case of Dr Green, FME income was paid to a partnership of medical practitioners, “Green & McLachlan” (consisting of Dr Green and his wife, so that Dr Green’s wife was the sole other partner in his partnership). She is a report writer and undertakes other administrative tasks for the partnership.

[291]Expenses were deducted from Green & McLachlan partnership earnings for premises, administration expenses, car, travel and subsistence, advertising, legal costs. In 2011, those expenses totalled £25,239, of which £11,261 were for administration expenses. It seems likely, as the Respondent suggests, that this was for assistance with the administration of his FME work (such as invoicing, record retention, typing of statements and accounting).

[292]After expenses of the partnership were deducted, the figures for profit (or, in some years, loss) were split 60:40 between Dr Green and his wife. That was the case even when the income from FME work exceeded 60% of the partnership’s income. Dr Green and his wife then accounted for tax on their share of the profit / loss figure.

[293]Indeed, Dr Green’s accounts provide examples of loss-making years for two separate years across the course of his engagement as an FME (the tax years 2020/21 and 2021/22). The Respondent points out that the possibility of the accounts of an FME showing a loss arises from the fact that they were required to incur the expense of indemnity insurance and training without the guarantee of being provided with shifts whilst personal circumstances might result in no shifts being worked over a tax year. More obviously, for whatever reason, there was the potential for earnings in a particular year to be sufficiently low so as to be completely offset by expenses so that, entirely legitimately, no tax liability was incurred.

[294]The Respondent makes the point that Dr Green was declaring to HMRC that his work for the Respondent was on behalf of the partnership. He confirmed in evidence that he still believed that this was a true and accurate representation to HMRC. Dr Green also confirmed that his fees for other elements of his work (from teaching, training and report-writing), which he referred to as “other fee paying exercises”, were declared in the partnership accounts / returns.

[295]Dr Green did complete the employment section of his personal tax return but this did not relate to the fees that he received from FME work for the Respondent. Over the period for which tax returns had been disclosed, he was variously employed by St. George’s Healthcare NHS Trust; Wandsworth PCT, the Care Quality Commission and South West London CCG. Receipt and taxation of payments: Dr Fairhead

[296]As far as Dr Fairhead was concerned, she simply treated her FME income as self-employment income, setting off relevant expenses including travel expenses, car costs and phone, fax and office costs.

[297]Unlike the other lead Claimant’s, Dr Fairhead said she only received income from the Respondent. Nevertheless, she set off a significant sum (around £6,500 per annum) as a deduction for administration / secretarial expenses which must have been in respect of assistance with invoicing, record retention, accounting and such like. Miscellaneous benefits

[298]The Claimants also sought to attach relevance to the fact that FMEs were able to use vending machines on police premises. However, the position of the Respondent was that all individuals with access to the custody suites are permitted to use the vending machines, with non-employment examples given such as volunteers and appropriate adults who accompany vulnerable suspects during interview.

[299]The Claimants also sought to attach relevance to the fact that FMEs were able to apply for a Blue Light Card which provided an entitlement to discounts from specified retailers on specified items. However, the position of the Respondent was that such cards are available to a very wide group with connections of any sort to the emergency services, including volunteers, with examples given of RNLI and St. John’s Ambulance workers. Contrast with employment terms

[300]The terms which applied to FMEs can be contrasted with the different contractual terms which the Respondent offered to individuals engaged as employees, rather than as self-employed, independent contractors.

[301]In particular, reference can be made to the contractual terms offered to employed Custody Nurse Practitioners (CNPs), with there being a number of obvious differences, as set out below.(1) The contractual terms under which the CNPs were engaged were expressly agreed as a contract of employment with a statement of particulars in provided for the purposes of Employment Rights Act 1996 sections 1 and 2.

(2) CNPs were paid a fixed monthly salary, subject to deductions for tax and National Insurance.

(3) the contractual terms made provision for a period of a continuous employment;

(4) an initial probationary period applied;

(5) collective agreements applied;

(6) there were set hours per week, following a rostered shift system;

(7) the Respondent had the contractual right unilaterally to alter rosters;

(8) the Respondent could require CNPs to work weekends and public and bank holidays;

(9) the Respondent had the contractual right to transfer CNPs to a different work location;

(10) the CNPs were entitled to paid annual leave;

(11) provision was made for pension entitlement;

(12) there was entitlement to sick pay;

(13) requirements applied in respect of notice periods;

(14) the Police Staff Discipline Policy applied;

(15) a grievance procedure similarly applied.

(16) the Respondent’s Inclusion, Diversity and Equality Policy applied.

(17) CNPs were subject to a Business Interests Clause by which they were prevented from engaging “in any other occupation or profession or business or work for any other organisation, company, firm or person without the written authority of your Borough Commander” so that “(w)orking outside without authority is a disciplinary offence”. Relevant law Statutory test for employee and worker status

Relevant law

[302]Section 230 of the Employment Rights Act 1996 (“ERA 1996”) includes the provisions set out below. “(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment. (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; and any reference to a worker's contract shall be construed accordingly. (4) In this Act “employer” , in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed. (5) In this Act “employment” — (a) in relation to an employee, means (except for the purposes of section 171) under a contract of employment, and (b) in relation to a worker, means employment under his contract; and “employed” shall be construed accordingly…”.

[303]ERA 1996 section 203(1) is in the terms set out below. “Any provision in an agreement (whether a contract of employment or not) is void in so far as it purports —(a) to exclude or limit the operation of any provision of this Act , or

(b) to preclude a person from bringing any proceedings under this Act before an employment tribunal”.

[304]In Stuart Delivery Limited v Augustine

[2022] ICR 511

, CA (as cited in Sejpal v Rodericks Dental Limited

[2022] ICR 1339

, at paragraph 30), Lewis LJ analysed ERA 1996 section 230 in the terms set out below. “35. The issue here is that the 1996 Act and the other relevant legislation confer rights on a ‘worker’. Section 230(3) of the Act defines a worker as a person who has entered into or worked under(1) a contract of employment; or

(2) a contract where the individual undertakes to do or perform personally any work or services for another person who is a party to the contract and whose status is not by virtue of the contract a client or customer of any profession or business undertaking carried on by the individual. “36. That reflects a distinction between (1) persons employed under a contract of employment, (2) persons who are self-employed, carrying on a profession or a business on their own account and who enter into contracts and provide work or services to clients and

(3) persons who are selfemployed and provide services as part of a profession or business carried on by others: see Bates van Winkelhof v Clyde & Co LLP

[2014] ICR 730

, para 25. If it is relevant or helpful to talk of categories at all, those are the three categories. The persons in (1) fall within section 230(3)(a) of the Act. The persons in group (3) are those who fall within section 230(3)(b) of the Act . Those in the second group are not workers within the meaning of section 230 of the Act”.

[305]In Bates van Winkelhof v Clyde & Co LLP

[2014] ICR 730

, SC, at paragraph 24, Baroness Hale DPSC distinguished between “those self-employed people who are in business on their own account and undertake work for their clients or customers; and an intermediate class of workers who are self-employed but do not fall within the second class” (paragraph 24) with specific examples being given at paragraph 25 (as quoted also in Windle v Secretary of State for Justice

[2016] ICR 721

, at paragraph 8), as set out “Second, within the latter class, the law now draws a distinction between two different kinds of self-employed people. One kind are people who carry on a profession or a business undertaking on their own account and enter into contracts with clients or customers to provide work or services for them. The arbitrators in Hashwani v Jivraj

[2011] ICR 1004

were people of that kind. The other kind are self-employed people who provide their services as part of a profession or business undertaking carried on by someone else. The general medical practitioner in Hospital Medical Group Ltd v Westwood

[2013] ICR 415

, who also provided his services as a hair restoration surgeon to a company offering hair restoration services to the public, was a person of that kind and thus a worker within the meaning of section 230(3)(b) of the 1996 Act”.

[306]A worker who meets the definition in s.230(3)(b) ERA is now commonly referred to as a “limb (b) worker”.

[307]In Uber BV v Aslam

[2021] ICR 657

, Lord Leggatt JSC highlighted (at paragraph 71) the relevance of the purpose of protecting workers, as set “The general purpose of the employment legislation invoked by the claimants in the Autoclenz case

[2011] ICR 1157

, and by the claimants in the present case, is not in doubt. It is to protect vulnerable workers from being paid too little for the work they do, required to work excessive hours or subjected to other forms of unfair treatment (such as being victimised for whistleblowing). The paradigm case of a worker whom the legislation is designed to protect is an employee, defined as an individual who works under a contract of employment. In addition, however, the statutory definition of a worker includes in limb (b) a further category of individuals who are not employees. The purpose of including such individuals within the scope of the legislation was clearly elucidated by Mr Recorder Underhill QC giving the judgment of the Employment Appeal Tribunal in Byrne Bros (Formwork) Ltd v Baird

[2002] ICR 667

, para 17(4): “the policy behind the inclusion of limb (b) . . . 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 … 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-a-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 armslength and independent position to be treated as being able to look after themselves in the relevant respects””. The relevance of contractual terms

[308]In Massey v Crown Life Insurance Co.

[1978] ICR 590

, CA, Lord Denning (at 596) suggested that, if the parties deliberately arrange to be selfemployed to obtain tax benefits, that is strong evidence that that is the real relationship, as set out below. “In most of these cases, I expect that it will be found that the parties do deliberately agree for the man to be “self-employed” or “on the lump.” It is done especially so as to obtain the tax benefits. When such an agreement is made, it affords strong evidence that that is the real relationship. If it is so found, the man must accept it. He cannot afterwards assert that he was only a servant”.

[309]In Quashie v Stringfellow Restaurants Ltd

[2013] IRLR 99

, CA, Elias LJ simply considered the relevance of the label placed by the parties on the relationship, as set out below: “It is trite law that the parties cannot by agreement fix the status of their relationship: that is an objective matter to be determined by an assessment of all the relevant factors. But it is legitimate for a court to have regard to the way in which the parties have chosen to categorise the relationship, and in a case where the position is uncertain, it can be decisive”.

[310]In Young & Woods Limited v West

[1980] IRLR 201

, the Court of Appeal considered the effect of the label placed by the parties in the relationship. The Court said that whether a person is employed or is self-employed is a question of law not a question of fact. It was further stated that the label which the parties choose to use to describe their relationship cannot alter or decide their true relationship, although in deciding what that relationship is, the expression by them of their true intention is relevant, but not conclusive, “I do not think that they would justify me in concluding that, wherever there is an agreement openly made that a particular person shall be treated by a company as self-employed, it follows that he must accept the position and cannot claim compensation for unfair dismissal as if he was not selfemployed but an employee. It must be the court’s duty to see whether the label correctly represents the true legal relationship between the parties in that case as in every other…” (paragraph 18).

[311]In Autoclenz v Belcher

[2011] UKSC 41

[2011] ICR 1157

, the Supreme Court was concerned, in the context of Tribunals having to apply the statutory test as to status in ERA 1996 section 230, with the issue “of whether and in what circumstances the ET may disregard terms which were included in a written agreement between the parties and instead base its decision on a finding that the documents did not reflect what was actually agreed between the parties or the true intentions or expectations of the parties” (paragraph 17).

[312]Having set out the classic legal test for a contract of employment or contract of service (see paragraphs 18 and 19), Lord Clarke stated (at paragraph 20) that the “essential question in each case is what were the terms of the agreement” and then endorsed the summary of the contractual orthodoxy given by Aikens LJ in the Court of Appeal, in the same case, as set out “87. … Express contracts (as opposed to those implied from conduct) can be oral, in writing or a mixture of both. Where the terms are put in writing by the parties and it is not alleged that there are any additional oral terms to it, then those written terms will, at least prima facie represent the whole of the parties' agreement. Ordinarily the parties are bound by those terms where a party has signed the contract: see eg L'Estrange v F Graucob Ltd

[1934] 2 KB 394

. If a party has not signed a contract, then there are the usual issues as to whether he was made sufficiently aware of the clauses for a court to be able to conclude that he agreed to the terms in them. That is not an issue in this case.88. Once it is established that the written terms of the contract were agreed, it is not possible to imply terms into a contract that are inconsistent with its express terms. The only way it can be argued that a contract contains a term which is inconsistent with one of its express terms is to allege that the written terms do not accurately reflect the true agreement of the parties.

89. Generally, if a party to a contract claims that a written term does not accurately reflect what was agreed between the parties, the allegation is that there was a continuing common intention to agree another term, which intention was outwardly manifested but, because of a mistake (usually a common mistake of the parties, but it can be a unilateral one) the contract inaccurately recorded what was agreed. If such a case is made out, a court may grant rectification of a contract. See, generally, the discussion in the speech of Lord Hoffmann, in Chartbrook Ltd v Persimmon Homes Ltd

[2009] AC 1101

, paras 48–66, with whom all the other Law Lords agreed”.

[313]At paragraph 21, Lord Clarke referred to a different approach being taken in relation to employment contracts, as set out below, “Nothing in this judgment is intended in any way to alter those principles, which apply to ordinary contracts and, in particular, to commercial contracts. There is, however, a body of case law in the context of employment contracts in which a different approach has been taken. Again, Aikens LJ put it correctly in the remainder of para 89 as follows: “But in cases of contracts concerning work and services, where one party alleges that the written contract terms do not accurately reflect the true agreement of the parties, rectification principles are not in point, because it is not generally alleged that there was a mistake in setting out the contract terms as they were. There may be several reasons why the written terms do not accurately reflect what the parties actually agreed. But in each case the question the court has to answer is: what contractual terms did the parties actually agree?”

[314]The Supreme Court endorsed the approach which had been taken in the Court of Appeal and, in doing so, set out (at paragraph 31) the guidance of Smith LJ (at paragraph 53) as set out below. “In my judgment the true position … is that where there is a dispute as to the genuineness of a written term in a contract, the focus of the enquiry must be to discover the actual legal obligations of the parties. To carry out that exercise, the tribunal will have to examine all the relevant evidence. That will, of course, include the written term itself, read in the context of the whole agreement. It will also include evidence of how the parties conducted themselves in practice and what their expectations of each other were. Evidence of how the parties conducted themselves in practice may be so persuasive that the tribunal can draw an inference that that practice reflects the true obligations of the parties. But the mere fact that the parties conducted themselves in a particular way does not of itself mean that that conduct accurately reflects the legal rights and obligations. For example, there could well be a legal right to provide a substitute worker and the fact that that right was never exercised in practice does not mean that it was not a genuine right … ”.

[315]At paragraph 32, Lord Clarke endorsed further the guidance of the Court of Appeal to the effect that the Tribunal must consider in every case what the true agreement between the parties was, looking at the reality of the obligations and the situation, as set out below. “Aikens LJ stressed at paras 90–92 the importance of identifying what were the actual legal obligations of the parties. He expressly agreed with Smith LJ's analysis of the legal position in the Szilagyi case and in paras 47–53 in this case. In addition, he correctly warned against focusing on the “true intentions” or “true expectations” of the parties because of the risk of concentrating too much on what were the private intentions of the parties. He added: “What the parties privately intended or expected (either before or after the contract was agreed) may be evidence of what, objectively discerned, was actually agreed between the parties: see Lord Hoffmann's speech in the Chartbrook case

[2009] AC 1101

, paras 64– 65. But ultimately what matters is only what was agreed, either as set out in the written terms or, if it is alleged those terms are not accurate, what is proved to be their actual agreement at the time the contract was concluded. I accept, of course, that the agreement may not be express; it may be implied. But the court or tribunal's task is still to ascertain what was agreed”. I agree”.

[316]Thus, it was made clear by Lord Clarke that the Tribunal must consider in every case what the true agreement between the parties was, looking at the reality of the obligations and the situation, as set out below. “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. This may be described as a purposive approach to the problem. If so, I am content with that description” (paragraph 35).

[317]Applying this purposive approach, Lord Clarke concluded in Autoclenz, that the Employment Tribunal was entitled to hold that the contractual documents did not reflect the true agreement between the parties.

[318]A number of relevant principles can be extracted from Autoclenz, (noting the passages emphasised in bold by HHJ Tayler in Sejpal v Rodericks Dental Limited

[2022] ICR 1339

, EAT) in relation to the issue of determining employment status, as listed below.(1) The question in every case is that of identifying the true agreement between the parties (paragraph 29).

(2) It was important to look at the reality of the obligations and at the reality of the situation (paragraph 29).

(3) To carry out that exercise, the Tribunal will have to examine all the relevant evidence. That will, of course, include the written term itself, read in the context of the whole agreement. It will also include evidence of how the parties conducted themselves in practice and what their expectations of each other were (paragraph 29)

(4) 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 (paragraph 35).

(5) Adopting such an approach, a Court or Tribunal may disregard a written term which is not part of the true agreement (paragraph 23).

(6) It is too narrow an approach to say that a Court or Tribunal may only disregard a written term as not part of the true agreement between the parties if the term is shown to be a sham, in the sense that the parties had a common intention that the term should not create the legal rights and obligations which it gives the appearance of creating (paragraph 28).

[319]The Respondent’s position is that, in so far it is often suggested in cases on status, on the basis of Autoclenz, that the Tribunal should simply look at the ‘reality’ of the situation between the parties, this is legally incorrect and misrepresents the true scope and impact of the applicable authorities, with particular reference being made to paragraphs 20 and 21 of autoplay’s (see above) where Lord Clarke stressed that the “essential question in each case is what were the terms of the agreement” (paragraph 20) and (at paragraph 21) “the question the court has to answer is: what contractual terms did the parties actually agree?”.

[320]The Claimants suggest that the decision in Uber BV v Aslam

[2021] ICR 657

, SC, builds on Autoclenz, signalling a new approach and dictates that the focus must be on the statutory test under ERA 1996 section 230 rather than the written contract per se.

[321]In Uber, it was explained (at paragraph 60) that the effect of the purposive approach adopted in Autoclenz was that for these purposes, certain contractual principles might not apply in the employment context such as:(1) the “parol evidence rule”, whereby a contractual document is presumptively treated as containing the whole of the parties’ agreement;

(2) the signature rule, whereby a person who signs a contractual document is treated in law as bound by its terms irrespective of whether he has in fact read or understood them; and

(3) the principle that, generally, the only way in which a party to a written contract can argue that its terms do not accurately reflect the true agreement of the parties is by alleging that a mistake was made in drawing up the contract which the court can correct by rectification, do not apply in the employment context (see paragraphs 60,. 61 and 68).

[322]Certainly, Uber endorses the approach in Autoclenz, emphasising that 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 void, further to ERA 1996 section 203(1)(a), in so far as they purport to exclude or limit the operation of those provisions, as set out below. “The Autoclenz case shows that, in determining whether an individual is an employee or other worker for the purpose of the legislation, the approach endorsed in the Carmichael case is appropriate even where there is a formal written agreement (and even if the agreement contains a clause stating that the document is intended to record the entire agreement of the parties). 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” (paragraph 85).

[323]Thus, Uber suggests (at paragraph 70) that the primary question was one of statutory interpretation rather than contractual interpretation, as set out “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”.

[324]For these purposes, Uber suggests that the starting point is not the contract agreed between the parties, because that in reality gives employers a free hand to determine for themselves whether persons they engage are employees, workers or self-employed. Tribunals must have regard to the legislative purpose (in the sense of that of protecting employees / workers). As such, it would be inconsistent with this purpose to treat the terms of a written contract as the starting point for determining worker status given the employer’s ability to dictate those terms (see paragraphs 76 to 78).

[325]At paragraph 77 of Uber, Lord Leggatt explained that “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”.

[326]In Sejpal v Rodericks Dental Limited

[2022] ICR 1339

, EAT, at paragraph 47, HHJ Tayler suggested that, in “assessing the other features of the statutory test for establishing worker status the employment tribunal was required to assess the true nature of the agreement, without excessive focus on wording that might be designed to avoid worker status being established”.

[327]In Ter-Berg v Simply Smile Manor House

[2023] EAT 2

, where a dentist failed in his attempt to re-classify his contractual relationship as employment, HHJ Auerbach explained that “the decision in Uber does not displace or materially modify the Autoclenz approach itself, which it cites extensively and adopts” but rather “it forms part of the conclusion of Lord Leggatt's developed account of the theoretical underpinning for that approach” (see paragraph 40).

[328]HHJ Auerbach further sought to explain the effect of the decision in Uber, “43. Uber does not therefore mean that written terms to which the parties have ostensibly signed up should generally now be disregarded. It does not signify that we have reached a point in the development of the law where the question of whether someone is a worker or an employee has become purely one of status with no role at all for contract. Mr McNerney confirmed in the course of argument that he did not so contend, and nor do I think that Lord Leggatt intended to go that far.44. That is not surprising. The starting point, as always, is the words of the statute. Section 230 requires that there be a contract of employment, or to be a worker, a contract that fulfils the section 230(3) definition. The Autoclenz approach does not simply bypass or ignore the contract. It travels through it, but, in a case where the true intention of the parties is contentious, it requires that the journey not end there, and that, in such a case, the contract be approached differently than a contract forged in a commercial or other conventional context would be. It allows the possibility that, having completed that exercise, the tribunal may conclude that what in reality the parties intended and agreed is not conveyed by some, or possibly all, of the terms of the contract.

45. But this does not mean that it is no longer possible for parties genuinely and in an informed way to agree that they want to form a working relationship which is neither one of employee nor one of worker, one consequence of which will be that various statutory employment protection rights will not apply to the individual who will be doing the work. Nor does it mean that a written agreement might not in a given case truly reflect everything that the parties have in fact agreed.

46. In many cases there will be no dispute that the terms of the written agreement do reflect faithfully the intentions and true agreement of the parties as to the nature and basis of the working relationship that they have formed. In such cases there will be no need for a wider inquiry. But, where that is contentious, and it is asserted that the wider factual circumstances suggest that the written terms do not, in some material way, reflect the reality of what was agreed, then the tribunal will err if it confines its inquiry to a consideration of those terms and the application of conventional contract law principles. Rather, it must look beyond those terms to all the relevant circumstances, applying the purposive approach described in Autoclenz and Uber. Provided that it does so, however, it is not in my judgment an error for the tribunal to begin its analysis by considering those written terms. But it must not treat that as both the beginning and the end of its inquiry. Whether the tribunal has in a given case erred is therefore to be judged not by reference merely to where, in setting out its reasons, it started its inquiry, but by considering, reading the decision as a whole, whether it has overall carried out a sufficiently wide-ranging inquiry in accordance with Autoclenz and Uber”.

[329]Thus, Tribunals must look at all the relevant circumstances and assess what the true agreement between the parties is. The contract remains part of those circumstances.

[330]There was further analysis of the effect of Uber from paragraphs 65 to 68, as set out below, “65. Two propositions can be seen as running through this section of the decision. The first is that if other factual features indicate that as a matter of law an agreement is to be classified as falling into a certain category, then a term asserting that it nevertheless does not will not make any difference. The second is that a provision which purports to state which type of agreement the parties have chosen to form cannot stand if, on an objective consideration it is apparent that the object of that provision in the given case is to defeat the operation of legislation conferring workers' rights.66. But what can still stand alongside those propositions is a third proposition articulated by Lord Denning MR in Massey v Crown Life Insurance Company

[1978] IRLR 31

and more recently restated by Elias LJ in Stringfellow Restaurants Ltd v Quashie

[2012] EWCA Civ 1735

at [52], that "it is legitimate for a court to have regard to the way in which the parties have chosen to categorise the relationship, and in a case where the position is uncertain, it can be decisive" .

67. Thus, if an agreement, as in Street [v Mountford

[1985] AC 809

], has all the factual features, such as a grant of exclusive possession, that make it as a matter of law a tenancy, the parties calling it a licence will not make it so. Similarly, if an agreement has all the factual features that make it in law a contract of employment, then a clause denying that will be ineffective. But in a scenario where the parties could properly have chosen to form a nonemployment relationship, and there are factual features that may be said to point both ways, then a clause of that sort should not automatically be regarded as of no weight at all, in the tribunal's evaluation of the overall picture.

68. Given how the passages that come before and after it are framed, I do not think that the last sentence in [85] of Uber was intended to state a more absolute principle to the effect that any and every provision of this sort must in any and every case as a matter of law now be regarded as irrelevant, effectively wholly casting aside the scenario described in Massey and Quashie. Of course the Autoclenz/Uber principle means that such a clause should be given no weight if the tribunal concludes that it is not a true statement of the parties' intentions because, in this case, it has as its object and purpose the thwarting of the statutory regime; and a tribunal may err if it fails to give the consideration to that possibility that is needed in a given case. But that is not the same as saying that such a clause must necessarily always be regarded as wholly irrelevant in every case”.

[331]Thus, in Ter-Berg v Simply Smile Manor House

[2023] EAT 2

, HHJ Auerbach summarised the legal position, in relation to clauses to the effect that a written agreement is not intended to create a relationship of employment or a worker relationship, as being as set out below.(1) As held in Uber, such a clause will be void and ineffective if, upon objective consideration of the facts, the Tribunal finds that it has as its object the excluding or limiting of the operation of the legislation in question (pursuant to ERA 1996 section 203(1) or the equivalent provisions of other legislation).

(2) In any event, if, apart from such a clause, the other facts found by the Tribunal point to the conclusion, applying the law to those facts, that the relationship is one of employment or a worker relationship, such a clause cannot affect that legal conclusion.

(3) However, if neither (1) nor (2) applies, then, in a marginal case, in which the Tribunal finds the clause to be a reflection of the genuine intentions of the parties, it may be taken into account as part of the overall factual matrix when determining the correct legal characterisation of the relationship. Test for employment status

[332]The classic formulation of the test for employment status was set out by Mackenna J in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance

[1968] 2 QB 497

, at 515 (cited with approval by Lord Clarke in Autoclenz Ltd v Belcher

[2011] UKSC 41

[2011] ICR 1157

, at paragraph 8) as set out below. “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. I need say little about (i) and (ii). As to (i). There must be a wage or other remuneration. Otherwise there will be no consideration, and without consideration no contract of any kind. The servant must be obliged to provide his own work and skill. Freedom to do a job either by one's own hands or by another's is inconsistent with a contract of service, though a limited or occasional power of delegation may not be: see Atiyah's Vicarious Liability in the Law of Torts (1967) pp. 59 to 61 and the cases cited by him. As to (ii). 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. "What matters is lawful authority to command so far as there is scope for it. and there must always be some room for it, if only in incidental or collateral matters." - Zuijs v. Wirth Brothers Proprietary, Ltd. To find where the right resides one must look first to the express terms of the contract, and if they deal fully with the matter one may look no further. If the contract does not expressly provide which party shall have the right, the question must be answered in the ordinary way by implication”.

[333]The above formulation was cited in Autoclenz (at paragraph 18), with Lord Clarke adding three further propositions (at paragraph 19) on the basis that they were uncontentious, as set out below. “Three further propositions are not I think contentious: i) As Stephenson LJ put it in Nethermere (St Neots) Ltd v Gardiner

[1984] ICR 612

, 623, "There must … be an irreducible minimum of obligation on each side to create a contract of service". ii) If a genuine right of substitution exists, this negates an obligation to perform work personally and is inconsistent with employee status: Express & Echo Publications Ltd v Tanton ("Tanton")

[1999] ICR 693

, per Peter Gibson LJ at p 699G. iii) If a contractual right, as for example a right to substitute, exists, it does not matter that it is not used. It does not follow from the fact that a term is not enforced that such a term is not part of the agreement: see eg Tanton at p 697G”. Mutuality of obligation

[334]In Nethermere (St Neots) Limited v Gardiner

[1984] ICR 612

, Stephenson LJ held (at 623) (as cited with approval in Autoclenz) that there “must … be an irreducible minimum of obligation on each side to create a contract of service”.

[335]In the same case, Kerr LJ held (at 629D) that the “inescapable requirement concerning the alleged employees however … is that they must be subject to an obligation to accept and perform some minimum, or at least reasonable, amount of work for the alleged employer”, and Dillon LJ held (at 634G) that “an arrangement under which there was never an obligation on the outworkers to do work, or on the company to provide work, could not be a contract of service”.

[336]In Carmichael v National Power plc

[1999] 1 WLR 2042

, HL, Lord Irvine cited this passage with approval (at 2047), in support of the proposition that, if there were no obligation on the employer to provide work, and none on the putative employee to undertake it, there would be “an absence of that irreducible minimum of mutual obligation necessary to create a contract of service”.

[337]In the same case, Lord Hoffman made it clear (at 2051) that for the entire duration of the contract under consideration, both the employer and the employee must be under legal obligations to one another.

[338]In Express & Echo Publications Limited v Tanton

[1999] ICR 693

, Peter Gibson LJ held (at p 699G) that if a genuine right of substitution exists, this negates an obligation to perform work personally and is inconsistent with employee status. Moreover, if a contractual right, as for example a right to substitute, exists, it does not matter that it is not used. It does not follow from the fact that a term is not enforced that such a term is not part of the agreement (697G).

[339]In Cotswold Developments Construction Limited v Williams

[2006] IRLR 181

, Langstaff J explained the position in the terms set out below. “Mutual obligations are necessary for there to be a contract at all. If there is a contract, it is necessary then to determine what type of contract it is. If it is a contract of employment, consequences will follow of the greatest significance – not only in terms of whether the employee is entitled to, and the employer subject to, those rights and duties conferred by statute upon employees and employers alike, but also common law considerations such as whether the employer may be, for instance, vicariously liable for the torts of the employee. The concept may be essential in determining whether there has been actionable discrimination on the ground of sex, race or disability. These matters are determined by the nature of the mutual obligations by reference to which it is to be accepted that there is a contract of some type” (paragraph 47). “It cannot simply be control that determines whether a contract is a contract of employment or not. The contract must also necessarily relate to mutual obligations to work, and to pay for (or provide) it: to what is known in labour economics as the “wage-work bargain” (paragraph 48). “Regard must be had to the nature of the obligations mutually entered into to determine whether a contract formed by the exchange of those obligations is one of employment, or should be categorised differently” (paragraph 54).

[340]It should be noted that the utility of the phrase “mutuality of obligation” has been somewhat doubted in cases like Varnish v British Cycling Federation

[2020] IRLR 832

, which emphasise that the key focus is on “whether the obligations under the contract are of the type that give rise to a contract of employment” (see paragraph 39).

[341]However, the Court of Appeal in Revenue and Customs Commissioners v Atholl House Productions Limited

[2022] EWCA Civ 501

[2022] ICR 1059

, (at paragraph 122) was clear that mutuality was a necessary precondition for a contract of employment. Effect of periods of non-work on mutuality of obligations

[342]In Hellyer Brothers Limited v McLeod

[1987] 1 WLR 728

, at 748, the question the Court asked itself in relation to a group of trawlermen who worked under successive contracts was whether there were facts from “which it could properly be inferred that the men had ever placed themselves under a legally binding obligation to make themselves available for work for Hellyers in between crew agreements or to refrain from seeking or accepting employment from another trawler owner during such periods”.

[343]Following this, the Court of Appeal in Clark v Oxfordshire Health Authority

[1998] IRLR 125

, accepted that the mutual obligations required to found a global contract of employment need not necessarily consist of obligations to provide and perform work: for example, an obligation on one party to accept and perform work and an obligation on the other party to pay a retainer during periods when work was not offered would be likely to suffice. However, it was essential that such obligations survived over the entirety of the “relevant period”. No contract of employment can exist in the absence of “mutual obligations subsisting over the entire duration of the relevant period” (see paragraph 22).

[344]In Windle v Secretary of State for Justice

[2016] ICR 721

, CA, Underhill J made it clear (at paragraph 23) that “the ultimate question must be the nature of the relationship during the period that the work is being done” but also considered that the position outside of those periods was relevant, as explained below. “But it does not follow that the absence of mutuality of obligation outside that period may not influence, or shed light on, the character of the relationship within it. It seems to me a matter of common sense and common experience that the fact that a person supplying services is only doing so on an assignment-by-assignment basis may tend to indicate a degree of independence, or lack of subordination, in the relationship while at work which is incompatible with employee status even in the extended sense. Of course it will not always do so …. Its relevance will depend on the particular facts of the case; but to exclude consideration of it in limine runs counter to the repeated message of the authorities that it is necessary to consider all the circumstances”.

[345]In Uber, Lord Leggatt makes clear (at paragraph 91) that employment status can exist at the times when the putative employee is working, even where there is no mutuality of obligation during periods of non-work, as set out “Equally, it is well established and not disputed by Uber that the fact that an individual is entirely free to work or not, and owes no contractual obligation to the person for whom the work is performed when not working, does not preclude a finding that the individual is a worker, or indeed an employee, at the times when he or she is working…. As Elias J (President) said in James v Redcats (Brands) Ltd

[2007] ICR 1006

, para 84: “Many casual or seasonal workers, such as waiters or fruit pickers or casual building labourers, will periodically work for the same employer but often neither party has any obligations to the other in the gaps or intervals between engagements. There is no reason in logic or justice why the lack of worker status in the gaps should have any bearing on the status when working. There may be no overarching or umbrella contract, and therefore no employment status in the gaps, but that does not preclude such a status during the period of work”. I agree, subject only to the qualification that, where an individual only works intermittently or on a casual basis for another person, that may, depending on the facts, tend to indicate a degree of independence, or lack of subordination, in the relationship while at work which is incompatible with worker status: see Windle v Secretary of State for Justice

[2016] ICR 721

, para 23”.

[346]A further qualification is that periods of non-work in between assignments can preclude a contention that an individual has been an employee continuously under an umbrella contract, that is, that the individual was employed even during periods of non-work. Generally, in order to establish that an individual was employed continuously, there needs to be some irreducible minimum of obligation existing across periods of non-work (see Stringfellow Restaurants Limited v Quashie

[2013] IRLR 99

, at paragraph 12).

[347]The Court of Appeal in Nursing and Midwifery Council v Somerville

[2022] EWCA Civ 229

;

[2022] ICR 755

, also made this clear at paragraph 53. For those periods of non-work, the question of whether there is an overarching contract of employment requires determination of “whether the contracts included obligations, referred to on occasions as the irreducible minimum of obligations, to provide and to accept some work”. In the absence of this, there may be contracts of employment created every time work is accepted, but no continuity of employment. The position was explained in paragraphs 53 to 55 in the terms set out below. “53. Similarly, other cases relied upon by the respondent, such as Nethermere

[1984] ICR 612

and Carmichael v National Power plc

[1999] ICR 1226

, were concerned with whether overarching contracts were contracts of employment so that the individuals were employed in periods when they were not, in fact, working. In that regard, it was necessary to determine whether the contracts included obligations, referred to on occasions as the irreducible minimum of obligations, to provide and to accept some work. They were not dealing with the individual contracts under which work was carried out and do not impose any requirement that even where an individual is working (or has worked) under a contract of employment, that that individual contract requires there to be some distinct, superadded obligation to accept the work. See the analysis in the PGMOL case

[2022] 1 All ER 971

at para 48 and following in relation to contracts of employment. The same reasoning applies in relation to contracts falling within limb (b) of the definition of worker in regulation 2 of the Regulations. 54. …. However, the fact that an overarching contract does not impose an obligation to work does not preclude a finding that the individual is a worker when he is in fact working: see para 91 of the decision in Uber

[2021] ICR 657

and the cases referred to in that paragraph such as Windle v Secretary of State for Justice

[2016] ICR 721

, especially at para 23. The position is clearly established in relation to contracts of employment by the decision in the PGMOL case

[2022] 1 All ER 971

and, in my judgment, similar principles apply when considering the relationship between a general or overarching contract and individual contracts to do work or perform services personally. Elisabeth Laing LJ, with whom the other members of the court agreed, held that: “McMeechan, Clark, Carmichael and Prater, which bind this court, are all cases in which this court considered, in one way or another, the relationship between mutuality of obligation in an overarching contract and in a single engagement. They establish at least three propositions.(i) The question whether a single engagement gives rise to a contract of employment is not resolved by a decision that the overarching contract does not give rise to a contract of employment.

(ii) In particular, the fact that there is no obligation under the overarching contract to offer, or to do, work (if offered) (or that there are clauses expressly negativing such obligations) does not decide that the single engagement cannot be a contract of employment. The nature of each contract is a distinct question.

(iii) A single engagement can give rise to a contract of employment if work which has in fact been offered is in fact done for payment”: PGMOL case, para 118. 55. Similarly, the fact that the claimant could withdraw from the agreement to attend a hearing even after he had accepted it does not alter matters. The claimant had entered into a contract which existed until terminated (see para 124 of the judgment in Uber). Furthermore, if it was not terminated and the claimant did chair the hearing, the claimant will, in the language of the Regulations, have worked under a contract personally to perform services. Nor does the reference to undertakes indicate that there must be some distinct, superadded obligation to provide services independent from the provision of the services on a particular occasion. Undertakes to do or perform in this context means no more than promises to do or perform. Finally, when deciding whether a specific agreement to provide services on one particular occasion amounts to a worker s contract, the fact that the parties are not obliged to offer, or accept, any future work is irrelevant: see McMeechan v Secretary of State for Employment

[1997] ICR 549

, 565C— E”. Personal service

[348]The employee must be obliged to provide work personally: see Pimlico Plumbers v Smith

[2018] UKSC 29

;

[2018] ICR 1511

, at paragraphs 20 to 34 (per Lord Wilson). The Supreme Court enunciated the “dominant feature” test for personal service, namely “whether the dominant feature of the contract remained personal performance on his part” (see paragraph 32).

[349]Further, the Supreme Court in Pimlico Plumbers endorsed the principles set out by Sir Terence Etherton MR in his judgment in the same case in the Court of Appeal in Pimlico Plumbers Limited v Smith

[2017] EWCA Civ 51

[2017] ICR 675

, CA, at paragraph 84, as set out below: “In the light of the cases and the language and objects of the relevant legislation, I would summarise as follows the applicable principles as to the requirement for personal performance. Firstly, an unfettered right to substitute another person to do the work or perform the services is inconsistent with an undertaking to do so personally. Secondly, a conditional right to substitute another person may or may not be inconsistent with personal performance depending upon the conditionality. It will depend on the precise contractual arrangements and, in particular, the nature and degree of any fetter on a right of substitution or, using different language, the extent to which the right of substitution is limited or occasional. Thirdly, by way of example, a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance. Fourthly, again by way of example, a right of substitution limited only by the need to show that the substitute is as qualified as the contractor to do the work, whether or not that entails a particular procedure, will, subject to any exceptional facts, be inconsistent with personal performance. Fifthly, again by way of example, a right to substitute only with the consent of another person who has an absolute and unqualified discretion to withhold consent will be consistent with personal performance”.

[350]In Pimlico Plumbers v Smith [2018], the right to substitute was assumed to be contractual and was determined to be limited to another Pimlico operative but was not limited to cases of illness (see paragraphs 25 to 28). The Supreme Court determined that in that case the Tribunal was entitled to hold that Mr Smith was obliged to do work personally (see paragraphs 33 and 34) and so upheld the decision at first instance that “the right to substitute another Pimlico operative did not negative Mr Smith's obligation of personal performance”, in that it was akin to shift swapping within a workforce (see paragraph 29). Given that “the substitute had to come from the ranks of Pimlico operatives, in other words from those bound to Pimlico by an identical suite of heavy obligations”, the dominant purpose of the contract was still personal performance (see paragraph 34).

[351]In Sejpal v Rodericks Dental Limited

[2022] EAT 91

[2022] ICR, 1339

, HHJ Tayler held (at paragraph 59) that the “fact that elements of the agreement (as to substitution) between the parties may result from regulatory requirements does not prevent them from being taken into account in considering whether there is an unfettered right of substitution”. HHJ Tayler stated that the “employment tribunal was required to consider whether the manner in which the provision of a (substitute) operated in practice was relevant to the true agreement between the parties”. Control

[352]The employer must have control over the employee. In other words, ultimate authority over the employee in the performance of his work resides in the employer, so that the employee is subject to the latter’s orders and directions.

[353]What is required is a “sufficient degree of control over the (putative employee) to preclude their independent status as contractors with their own organisation and working arrangement” (see Troutbeck SA v White and Todd

[2013] EWCA Civ 1171

, at paragraph 41).

[354]Absence of “actual day-to-day control” is not determinative (see paragraph 38). The Court of Appeal upheld the EAT’s approach of asking whether there was, “to a sufficient degree, a contractual right of control over the worker” (paragraph 18).

[355]In Wright v Aegis Defence Services (BVI) Limited [2018]

UKEAT/0173/17

, the EAT considered the case of an “in-house solicitor who advises an employer on matters of law as to which the employer may be ignorant or much less well informed”. Such a person is “plainly” an employee and is “engaged as such precisely because the employer does not have their particular skills and could not himself do their jobs”. The EAT continued that the issue “does not depend, as the cases make clear, upon the practical demonstration of control by drawing attention to particular instances when control has or has not been exercised, but rather to what is known of or maybe inferred as to the contract between the parties which is said to give rise to the right in the employer to direct in relevant respects” (see paragraph 40).

[356]The question is not whether the employer controls the way the individual does the work, rather whether the employer can, under the terms of the contract, direct him or her in what he or she did (see paragraph 35 of Wright).

[357]That is distinct from showing that the employer controls the way that the employee does the work. Even an absence of day-to-day control may not be relevant, if the employer retains the ultimate contractual power to direct what work should be done (see Troutbeck above).

[358]The nature and degree of control necessary to found a contract of employment is likely to vary with the type of work in question.

[359]In Catt v English Table Tennis Association

[2022] EAT 125

, the Claimant held office as a non-executive director as Table Tennis England’s elected Deputy Chairman. The matter in issue was whether there was a contract between the parties whereby the Claimant undertook to perform work or services for the Respondent (see paragraph 45). Eady P suggested that the focus of the Employment Tribunal on “issues of vulnerability, subordination and dependence”, which had all been “matters of understandable emphasis in the Uber case” were “inevitably less relevant to the position of the claimant as a non-executive director” so that “the fact that there might not be the same degree of dependency for the non-executive director might not be determinative when considering whether, adopting a purposive approach, the statutory protection should be taken to extend to such roles” (see paragraph 49).

[360]In Commissioners for His Majesty's Revenue and Customs v Professional Game Match Officials Limited

[2024] UKSC 29

, Lord Richards suggested (at paragraphs 65 and 66) that the test for control was that of a "sufficient framework of control”, as set out below. “65. This question was discussed in Montgomery in which Buckley J said at para 19 that, as to control, 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." 66. The phrase used by Buckley J, a "sufficient framework of control", has also been adopted in subsequent authorities, including the FTT and the UT in the present case. Neither party on this appeal sought to advance a more precise test of control, and I doubt if it is possible to do so”. Umbrella or overarching contract

[361]It is possible for an obligation to provide work to crystallise over the duration of a hitherto casual working relationship. In Nethermere (St Neots) Limited v Gardiner

[1984] ICR 612

, the majority accepted that the “existence of a contract of service may … be inferred from a course of dealing, continued between the parties over several years” (634 to 635), based on “well founded expectations of continuing … work” (627).

[362]In order to establish continuity of service under a contract of employment for the purposes of ERA 1996 section 212(1), the case law makes clear that the contract (on proper analysis) entails a promise of future work. In Hellyer Brothers Limited v McLeod

[1987] 1 WLR 728

, at 748, the question the Court asked itself, in relation to a group of trawlermen who worked under successive contracts, was whether there were facts from “which it could properly be inferred that the men had ever placed themselves under a legally binding obligation to make themselves available for work for Hellyers in between crew agreements or to refrain from seeking or accepting employment from another trawler owner during such periods”.

[363]Following this, the Court of Appeal in Clark v Oxfordshire Health Authority

[1998] IRLR 125

[364]In St Ives Plymouth Limited v Haggerty

[2008] UKEAT 0107/08

, the Tribunal found that over the course of dealing there developed an “an expectation that the claimant would be available for a reasonable amount of work”, though there was no specific minimum amount (see paragraph 10). The EAT noted that while “expectations did not of themselves amount to legal obligations, the expectations of the parties were a relevant consideration for the Tribunal to consider and could in an appropriate case give rise to legal obligations” (see paragraph 16). The question was whether the course of dealing gave rise to a binding obligation to provide some work, or whether the expectation of work was based in goodwill or market forces (see paragraphs 27 to 28).

[365]The position in respect of “umbrella” or “overarching” contracts was summarised by Elias LJ (at paragraph 12) in Quashie v Stringfellow Restaurants Limited

[2013] IRLR 99

, as set out below. “In order for the contract to remain in force, it is necessary to show that there is at least what has been termed 'an irreducible minimum of obligation', either express or implied, which continues during the breaks in work engagements: see the judgment of Stephenson LJ in Nethermere (St Neots) v Gardiner

[1984] IRLR 240

, 245, approved by Lord Irvine of Lairg in Carmichael v National Power plc

[2000] IRLR 43

, 45. Where this occurs, these contracts are often referred to as 'global' or 'umbrella' contracts because they are overarching contracts punctuated by periods of work. However, whilst the fact that there is no umbrella contract does not preclude the worker being employed under a contract of employment when actually carrying out an engagement, the fact that a worker only works casually and intermittently for an employer may, depending on the facts, justify an inference that when he or she does work it is to provide services as an independent contractor rather than as an employee”.

[366]In Hafal v Lane-Angell

[2018] UKEAT 0107/17

, the Claimant was an “appropriate adult” who e-mailed her availability to the Respondent. Once she had done so, there was a “three strikes” policy whereby she would be removed from the rota if she cancelled shifts three or more times after having indicated her availability for the shift concerned. The EAT required that, in order to establish an umbrella contract, there be an obligation on the Claimant “to provide any or any minimum number of dates of availability” (see paragraph 29). Other factors

[367]There must be no other aspects of the contract that are inconsistent with it being a contract of service taking into account “all relevant factors” (see Kickabout Productions Limited v Commissioners for Her Majesty's Revenue and Customs

[2022] EWCA Civ 502

, at paragraph 104).

[368]There is no definitive list of the features of any agreement which point towards, or away from, its being a contract of employment. In Hall (Inspector of Taxes) v Lorimer

[1994] ICR 218

(cited at length at paragraphs 91 to 96 pf Revenue and Customs Commissioners v. Atholl House Productions Ltd

[2022] EWCA Civ 501

, the Court of Appeal upheld the decision of Mummery J in the High Court (

[1992] ICR 739

) to the effect that it was necessary to consider many different aspects of the person's work activity, and that this was not to be done by way of a mechanical exercise of running through items on a check list to see whether they were present in, or absent from, a given situation. Not all details are of equal weight or importance in any given situation.

[369]In Richards v Waterfield Homes Limited

[2022] EAT 148

, HHJ Barklem overturned the decision of the Employment Tribunal which had held, in effect, that, despite all factors pointing to worker status bar one (the Claimant’s tax status), that one factor negatived worker status (see paragraphs 18 and 28). It was suggested that that factor alone cannot be sufficient to negative status where other indicators suggest that that status is made out on the facts. Worker status

[370]Under ERA 1996 section 230(3)(b), a worker is a person who has entered into or works under a 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”.

[371]This involves three elements, as identified in Uber BV v Aslam

[2021] UKSC 5

[2021] ICR 657

, as set out below. “Limb (b) of the statutory definition of a "worker's contract" has three elements:(1) a contract whereby an individual undertakes to perform work or services for the other party;

(2) an undertaking to do the work or perform the services personally; and

(3) a requirement that the other party to the contract is not a client or customer of any profession or business undertaking carried on by the individual” (see paragraph 41).

[372]In Windle v Secretary of State for Justice

[2016] EWCA Civ 459

[2016] ICR 721

, Underhill LJ stated (at paragraph 24) that “factors relevant in assessing whether a claimant is employed under a contract of service are not essentially different from those relevant in assessing whether he or she is an employee in the extended sense, though…, in considering the latter question the boundary is pushed further in the putative employee’s favour — or, to put it another way, the pass mark is lower”.

[373]In Sejpal v Rodericks Dental Limited

[2022] EAT 91

[2022] ICR 1339

, HHJ Tayler stated (at paragraph 23) that, in worker status cases, the concept of mutuality of obligation goes principally to the issue of whether there is a relevant agreement, or agreements in that there must be mutuality of an obligation for there to be a contract at all.

[374]The relevance of “control” as a factor was also emphasised in Uber (at paragraph 87) as set out below. “In determining whether an individual is a worker, there can, as Baroness Hale DPSC said in the Bates van Winkelhof case

[2014] ICR 730

, para 39, be no substitute for applying the words of the statute to the facts of the individual case. At the same time, in applying the statutory language, it is necessary both to view the facts realistically and to keep in mind the purpose of the legislation. As noted earlier, the vulnerabilities of workers which create the need for statutory protection are subordination to and dependence upon another person in relation to the work done. As also discussed, a touchstone of such subordination and dependence is (as has long been recognised in employment law) the degree of control exercised by the putative employer over the work or services performed by the individual concerned. The greater the extent of such control, the stronger the case for classifying the individual as a worker who is employed under a worker’ s contract”. Client or customer of profession or business undertaking

[375]Under ERA 1996 section 230(3)(b), even where the individual undertakes to do or perform personally, he or she will not be a worker if the status of the other party to the contract is that of a “client or customer of any profession or business undertaking carried on by the individual”.

[376]In Byrne Bros (Formwork) Limited v Baird

[2002] ICR 667

, Mr Recorder Underhill QC explained (at paragraph 17) the essence of the distinction between a worker and a contractor, in the terms set out below. “The reason why employees are thought to need such protection is that they are in a subordinate and dependent position vis-a-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”.

[377]In Cotswold Developments Construction Ltd v Williams

[2006] IRLR 181

, Langstaff J suggested (at paragraph 53) “a focus on whether the purported worker actively markets his services as an independent person to the world in general (a person who will thus have a client or customer) on the one hand, or whether he is recruited by the principal to work for that principal as an integral part of the principal's operations, will in most cases demonstrate on which side of the line a given person falls”.

[378]In James v Redcats (Brands) Limited

[2007] ICR 1006

, Elias J agreed (at paragraph 50) that this would “often assist in providing the answer” but the difficult cases were those where the individual did not market her services at all. He also accepted (at paragraph 48) that “in a general sense the degree of dependence is in large part what one is seeking to identify—if employees are integrated into the business, workers may be described as semi-detached and those conducting a business undertaking as detached— but that must be assessed by a careful analysis of the contract itself” He further stated that the “fact that the individual may be in a subordinate position, both economically and substantively, is of itself of little assistance in defining the relevant boundary because a small business operation may be as economically dependent on the other contracting party, as is the selfemployed worker, particularly if it is a key or the only customer”.

[379]In James v Redcats (Brands) Limited [2007], Elias LJ looked at the definition of worker in sex discrimination legislation, which was similarly wide but without the reference to clients and customers, by reference to the “dominant purpose” test in Mirror Group Newspapers Limited v Gunning

[1986] 1 All ER 385

, and concluded (at paragraph 59) that “the dominant purpose test is really an attempt to identify the essential nature of the contract” in terms of whether its “essence to be located in the field of dependent work relationships, or is it in essence a contract between two independent business undertakings” so as to “distinguish between the concept of worker and the independent contractor who is on business in his own account, even if only in a small way”.

[380]In Hospital Medical Group Limited v Westwood

[2013] ICR 415

, CA, it was argued that Dr Westwood was in business on his own account as a doctor, in which he had three customers: the NHS for his services as a general practitioner, the Albany Clinic for whom he did transgender work, and Hospital Medical Group (HMG) for whom he performed hair restoration surgery. The EAT had held that Dr Westwood was a limb (b) worker because he had agreed to provide his services as a hair restoration surgeon exclusively to HMG, he did not offer that service to the world in general, and he was recruited by HMG to work as an integral part of its operations. The Court of Appeal upheld that approach as the right approach. The Court of Appeal considered that these were three separate businesses, quite unrelated to one another, and that he was a class (b) worker in relation to HMG. The fact that Dr Westwood was in business on his own account was not conclusive because the definition also required that the other party to the contract was not his client or customer and HMG was neither.

[381]In Hospital Medical Group Limited v Westwood [2013], Maurice Kay LJ pointed out (at paragraph 18) that neither the Cotswold “integration” test nor the Redcats “dominant purpose” test purported to lay down a test of general application. In his view they were wise “not to lay down a more prescriptive approach which would gloss the words of the statute”. Thus, he declined the suggestion that the Court might give some guidance as to a uniform approach, stating “I do not consider that there is a single key with which to unlock the words of the statute in every case” (paragraph 19) although he agreed that the “integration” test “will often be appropriate as it is here”.

[382]In Bates van Winkelhof v Clyde & Co LLP

[2014] ICR 730

, SC, Baroness Hale agreed with Maurice Kay LJ that there is not “a single key to unlock the words of the statute in every case”. She provided the further guidance (at paragraphs 39 to 40) set out below. “39. 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 the Redcats case

[2007] ICR 1006

, a small business may be genuinely an independent business but be completely dependent on 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's case

[2013] ICR 415

, 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. 40. It is accepted that the appellant falls within the express words of section 230(3)(b) . Judge Peter Clark held that she was a worker for essentially the same reasons that he held Dr Westwood to be a worker, that she could not market her services as a solicitor to anyone other than the LLP and was an integral part of their business. They were in no sense her client or customer. I agree”.

[383]In Suhail v Barking Havering & Redbridge University Hospitals NHS Trust [2015]

UKEAT/0536/13

, the Claimant was a registered GP. He worked as an out-of-hours GP for the Rotherham Primary Care Trust and additionally signed a members’ agreement with the Partnership of East London Cooperative (PELC) which provided his services from time to time to the Trust at an Urgent Care Centre (“UCC”). He was described in the members’ agreement as a self-employed contractor, rendering invoices which were paid without deduction of Tax and NIC. There was no obligation on PELC to provide work, nor for the Claimant to accept assignments when offered. In upholding the decision that the Claimant was not a worker, HHJ Clark explained and distinguished the decision in Westwood (see above) as set “26. However, as Maurice Kay LJ said in Westwood, paragraph 3, cases of this kind are particularly fact sensitive. The essential point in Westwood was that, although Dr Westwood had other “jobs”, the key factual finding was that he had agreed to provide his services as a hair restoration surgeon exclusively to HMG, he did not offer that service to the world in general, and he was recruited by HMG to work as an integral part of its operations (see Bates, paragraph 38). Maurice Kay LJ approved that approach …. 27. That exclusivity is wholly missing on the facts of the present case. As Employment Judge Major found at paragraph 10(a) of his Reasons: “The Claimant is free to work or not as often as he chooses and where””.

[384]Thus, the exclusivity of the relationship in Westwood coupled with the integration of Dr Westwood took him to the “worker” side of the line. By contrast, Dr Suhail was not subject to exclusivity and was free to work elsewhere. He was not a “worker”. Doctrine of the undisclosed principal

[385]In Playboy Club London Ltd v Banca Nazionale del Lavoro SpA

[2018] UKSC 43

, 1 WLR 4041, which was a case about how far a duty of care extended when a bank provided a financial reference, the Supreme Court confirmed that the undisclosed principal doctrine remained a valid rule of law. At paragraph 12, Lord Sumption summarised the position as below. “The rule of English law that an undisclosed principal may declare himself and enter upon a contract is an anomalous legacy of eighteenth and nineteenth century jurisprudence, which survives in the modern law on account of its antiquity rather than its coherence. The law on the point was summarised by Lord Lloyd of Berwick in Siu Yin Kwan v Eastern Insurance Co Ltd

[1994] 2 AC 199

, 207: “(1) An undisclosed principal may sue and be sued on a contract made by an agent on his behalf, acting within the scope of his actual authority. (2) In entering into the contract, the agent must intend to act on the principal's behalf. (3) The agent of an undisclosed principal may also sue and be sued on the contract. (4) Any defence which the third party may have against the agent is available against his principal. (5) The terms of the contract may, expressly or by implication, exclude the principal's right to sue, and his liability to be sued”.

[386]To this I would add that the third party must irrevocably elect whether to sue the agent or the undisclosed principal”.

[387]The position was explained further by Lord Sumption at paragraph 14, in the terms set out below. “The liability of a contracting party to his counterparty's undisclosed principal, however, is not a legal conclusion from any factual relationship between them. It is a purely legal construct. The whole point about the law relating to undisclosed principals is that a person may be brought into contractual relations with some one with whom he has no factual relationship at all. As Lord Lloyd of Berwick observed in Siu Yin Kwan v Eastern Insurance Co Ltd

[1994] 2 AC 199

, 207F-G, the doctrine "runs counter to fundamental principles of privity of contract"”.

[388]However, in Community Based Care Health Limited v Narayan [2019]

UKEAT/0162/18/JOJ

, the undisclosed principal doctrine was examined in similar circumstances to the present case. In that case, the Claimant, a doctor providing GP services, accounted for her earnings through a limited company, on advice from her accountant (paragraph 9). At first instance, the Tribunal found that she was a “worker”.

[389]On appeal to the EAT, the Appellant (represented for the first time by Mr Pilgerstorfer, counsel for the Respondent in the present case) argued that the undisclosed principal doctrine, as summarised in Siu Yin Kwan v Eastern Insurance Co Ltd

[1994] 2 AC 199

(at 207), applied. Kerr J rejected this argument on the basis of the reasoning set out below. “25. In case I am wrong and the point should be entertained on appeal, I am comfortable that there is no merit in the substance of this ground of appeal. The relationship between the parties, and the respondent’s activities and raison d’être, required that those performing the out of hours service must be qualified and approved GPs capable of satisfying the strict qualification and performance requirements set by the respondent and by the NHS nationally.26. The company could not possibly meet the respondent’s entry requirements. It is not a doctor. It is not even human. It cannot treat a patient or prescribe a drug or exercise medical judgment. The respondent could not approve it without knowing of its existence. On the judges’ findings the right of “substitutability”, if it existed at all, was to substitute a suitability qualified and approved GP, not an inanimate corporate entity.

27. I would therefore have no hesitation in deciding that the terms of the claimant’s relationship with the respondent before October 2015 precluded substitution of the company from then onwards. The case is therefore one where the undisclosed principal doctrine is excluded applying the fifth of Lord Lloyd’s five propositions (at 207C-E) delineating the scope of the doctrine: “The terms of the contract may, expressly or by implication, exclude the principal’s right to sue, and his liability to be sued. The contract itself, or the circumstances surrounding the contract, may show that the agent is the true and only principal”.

28. If the issue had been presented to the judge in the way Mr Pilgerstorfer now presents it to me in this appeal, I think the judge would have found that those words apply par excellence to the facts of this case. I can therefore base my decision to dismiss the first ground of appeal not just on the proposition that it was not argued below and is not open on appeal, but that being considered on appeal it is found to be wanting in merit” .

[390]In Catamaran Cruisers v Williams

[1994] IRLR 386

, Mr Williams took advice from his accountant that he should set up a limited company through which to channel his income earned from the Respondent, who categorised him as self-employed (see paragraph 11). The Respondent argued that this interposition of a limited company debarred a finding of employment status between Mr Williams and the Respondent. The decision of the EAT on this issue was as set out below. “13. There is no rule of law that the importation of a limited company into a relationship such as existed in this case prevents the continuation of a contract of employment. If the true relationship is that of employer and employee it cannot be changed by putting a different label upon it. In Massey v Crown Life Insurance Co

[1978] IRLR 31

, Lord Denning MR observed at p.33, 13: ‘The law, as I see it, is this: if the true relationship of the parties is that of master and servant under a contract of service, the parties cannot alter the truth of that relationship by putting a different label on it.’ 14. In our view, it is a question of fact in every case whether or not the contract in question is one of service or a contract for services. We accept that the formation of a company may be strong evidence of a change of status but that the fact has to be evaluated in the context of all the other facts as found”. On the facts of that case, the Claimant was held to have been an employee of the Respondent (see paragraph 18). Issue of two employers in respect of same work

[391]The Respondent also places reliance upon the principle that one employee cannot simultaneously have two employers on the basis that it is not conceptually possible, nor legally permissible, to be an employee / worker of two completely different and unconnected legal entities in respect of the same work.

[392]In Patel v Specsavers Optical Group Limited [2019], at paragraph 40, Stacey J had reiterated this principle in the terms set out below. “Unlike in the theatre, it is a well-established principle of employment law that in general terms one employee cannot simultaneously have two employers (Laugher v Pointer (1826) 5 B & C 547). The reason why the concept of dual employment has such theatrical comedic potential derives from the confusion and farcical consequences that can arise from competing and contradictory instructions being given by two employers to one employee. It was also a seam mined by Laurel and Hardy, so slapstick potential too”.

[393]This decision was cited by the EAT, when it revisited the issue as to whether an individual can, legally, be an employee of two entities when undertaking particular work, in its Judgment in Fire Brigades Union v Embery

[2023] EAT 51

, at paragraph 32. The EAT also noted that Stacey J had cited, with approval, the decision of the EAT to like effect, namely that one employee cannot simultaneously have two employers in respect of the same work, in Cairns v Visteon (UK) Limited

[2007] ICR 616

. The EAT upheld, at paragraph 72, the relevant ground of appeal on the basis that “Laugher v Pointer, Cairns v Visteon (cited in Patel) and Patel itself identify a broad principle that one employee cannot simultaneously have two employers, and Cairns particularly applies that principle in the context of employment protection legislation”. In doing so, at paragraph 73, the EAT both distinguished and doubted the correctness of the EAT decision, which had been described as the “outlier” in Prison Officers Association v Gough [2009]

UKEAT/0405/09

(which related to the rather different factual scenario of release for full-time trade union duties).

[394]In the case of Al Taweel v Stichting Female Journalists Network

[2023] EAT 159

, the Claimant worked pursuant to a fixed term contract made with the Respondent under which she was described as a consultant from 1 March 2018 to 31 August 2018. There was then a break in her work of several months, before signing a contract covering the period 1 January 2019 to 31 December 2019 in which she was described as an employee. In August 2019 she, with the Respondent’s knowledge, set up a company “on the advice of her accountants for tax purposes as a vehicle for her to provide research services to the Respondent and others”. She was the sole director and shareholder of the company as well as being the “sole employee of the company” (paragraph 6). From 1 January 2020 onwards, the Claimant continued her work, during which time a number of draft contracts in which the Respondent was to contract directly with the Claimant’s company were never signed.

[395]The Employment Tribunal had found at first instance that “the Respondent paid the Claimant's company in respect of her work done in 2020 and at that time the Claimant was an employee of that company and paid for that work by it”, holding therefore that the Claimant could not have been employed by the Respondent in respect of that same work (see paragraph 12).

[396]In the subsequent decision of the Employment Appeal Tribunal, HHJ Shanks recounted (at paragraph 15) that “I enquired as to what evidence had been before the ET to support the conclusion stated there twice that she was an employee of her company”. He added that it “seems from what I was told that the main point relied on by the Respondent was that the company's accounts, or Companies House returns, had stated that it had one employee and that the Claimant had accepted in the course of her cross-examination, as she was bound to do, that that was a reference to her”.

[397]HHJ Shanks dealt with this issue at paragraphs 16 and 17 of the Judgment of the EAT as set out below. “16. The EJ does not refer to this evidence or to any other relevant answers apparently given by the Claimant on this general topic. Mr Knezevic for the Claimant says that the EJ should not have made a finding that his client was an employee of her company without considering the issue in the way that it is normally considered by an ET when disputed, i.e., by applying the Ready Mixed Concrete criteria, looking at matters objectively and in accordance with the realities on the ground. 17. For my part I am not satisfied that there was a proper forensic concession by the Claimant's side on this point and I agree with Mr Knezevic that if the EJ was going to make a finding that the Claimant was, indeed, employed in a technical sense by her company she ought to have objectively analysed the position as between the Claimant and her company in accordance with the reality on the ground and made a positive finding on the evidence that she was, indeed, an employee of her company before reaching a conclusion that, while everything else pointed to a contract of employment with the Respondent, she was defeated by the dual employment rule”. HMRC v Professional Game Match Officials Limited

[2024] UKSC 29

[398]The issue in HMRC v Professional Game Match Officials Limited

[2024] UKSC 29

, was whether the football referees concerned, namely referees in the “National Group” (NGRs) were employed by Professional Game Match Officials Limited (PGMOL), whether under an overarching umbrella contract, or in respect of individual match appointments, that would give rise to an obligation on PGMOL to deduct tax and National Insurance at source and to account for the same to HMRC.

[399]Thus, whilst the case involved applying the common law test for employment of McKenna J in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] (see above), it needs to be remembered, at the outset, that the context was not that of determining the issue of employment for the purposes of qualifying for statutory employment rights.

[400]The Supreme Court gave guidance (at paragraph 30) which was as set out “First, there has been a tendency in some judgments and still more in the submissions made in some cases, to focus unduly on the issues of mutuality of obligation and control and to treat all other terms of the contract and the surrounding circumstances of the parties' relationship as of less significance, or even as being relevant only if they negative the existence of an employment relationship. However, not only did MacKenna J himself make clear that mutuality of obligation and control were necessary, but not necessarily sufficient, conditions of a contract of employment, but there are decisions of high authority which emphasise the need to address "the cumulative effect of the totality of the provisions [of the contract] and all the circumstances of the relationship created by it" and to view "in the round, the relationship between the parties recorded in the agreement in the setting of the surrounding circumstances": White v Troutbeck SA

[2013] EWCA Civ 1171

[2013] IRLR 949

, per Sir John Mummery at paras 38 and 41”.

[401]In terms of the relevant test for control, the Supreme Court recognised that referees are in the category of “the minority of cases where the nature of the services provided by the putative employee leaves little room for intervention by the putative employer, [such that] the question of control may be difficult to answer” (paragraph 61). The relevant test in such cases was whether there is control “to a sufficient degree” or “some sufficient framework of control” (paragraph 62).

[402]The conclusion of the First-Tier Tribunal, Upper Tribunal and Court of Appeal (HMRC v Professional Game Match Officials Limited

[2021] EWCA Civ 1370

) had been that there was no overarching or umbrella contract of employment, between match appointments.

[403]HMRC was not seeking to argue, on appeal to the Supreme Court, that there was an overarching contract of employment that persisted between individual appointments (paragraph 22).

[404]Clearly, though, there were arrangements in place which applied between individual appointments namely:(1) NGRs were required to provide a Match Report for every match that they officiated (paragraph 55);

(2) NGRs were subject to a formal disciplinary procedure (paragraph 14);

(3) NGRs could be demoted, for disciplinary matters, including for breaches of the extensive FA Rulebook, and could be promoted based on a formal assessment / appraisal process (Court of Appeal decision paragraphs 15 and 19);

(4) the formal assessment / appraisal process also provided the basis for end-of-season bonuses (Court of Appeal decision paragraphs 36 and 37);

(5) NGRs used the Match Official Administration System which required details to be inputted by NGRs and through which they accepted / rejected offered match appointments entirely at their own choice (paragraph 12);

(6) NGRs were required to undertake mandatory PGMOL training, including an extensive, annual pre-season training course and a fitness test (paragraph 13);

(7) the training was arranged / provided by the PGMOL and NGRs were paid for attending the same (Court of Appeal decision paragraph 22);

(8) the PGMOL also provided uniforms for NGRs, which were mandatory to wear on match days, and provided private medical insurance and psychological support to NGRs (Court of Appeal decision paragraph 23).

[405]The basis of the finding of the Upper Tribunal that there was no overarching or umbrella contract of employment for NGRs was summarised by the Court of Appeal, as set out below. “The UT concluded that the FtT was clearly correct to conclude, as a matter of law, that in the absence of an obligation on PGMOL to provide at least some work (or some consideration in lieu of work) or in the absence of an obligation on the referee to undertake at least some work, there would be insufficient mutuality of obligation to characterise the overarching contract as a contract of employment” (paragraph 105).

[406]The Court of Appeal’s conclusion on that issue was as set out below. “The FtT was entitled, in my judgment, on the authority of Carmichael, to conclude that the overarching contract was not a contract of employment as, properly understood, it did not require PGMOL to offer work, or the NGRs to do it” (paragraph 120).

[407]That decision was not under appeal before the Supreme Court. As far as the issue as to whether each individual assignment amounted to a contract of employment, the Supreme Court stated “that this Court is able, on the basis of the FTT's findings of fact and the extensive submissions made by both parties, to conclude for itself that the irreducible minimum of mutuality of obligation and control necessary for a contract of employment between the National Group referees and PGMOL is satisfied in this case in relation to the individual match contracts”. However, on the basis of the guidance which the Supreme Court had given, that was insufficient on its own to establish that the individual assignments gave rise to individual contracts of employment, so that the case was remitted back to the First-tier Tribunal for it to perform the balancing exercise and address “the cumulative effect of the totality of the provisions of the contract and all the circumstances of the relationship created by it” and to view “in the round, the relationship between the parties recorded in the agreement in the setting of the surrounding circumstances”, for the purposes of deciding whether the individual assignments amounted to contracts of employment. Discussion and conclusions Claimants’ case

Discussion and conclusions

[408]The Claimants contend that they were employees and / or workers engaged under an umbrella or overarching contract covering the period 1996 until its termination on 30 April 2021.

[409]The Claimants’ primary case is that they were employees working pursuant to an overarching contract which possessed the requisite irreducible minimum of mutual obligation continuously from the date of the 1996 contract onwards.

[410]The Claimants’ case on personal service is that the dominant purpose of the contract was personal service. The Claimants further contend that the Respondent subjected them to a high degree of control both during periods of work and non-work.

[411]Further or alternatively, the Claimants will say that they worked pursuant to a contract (or contracts) granting them worker status until their contracts were terminated on 30 April 2021.

[412]The Claimants’ alternative case is that they worked pursuant to a series of individual contracts. The Claimants contend that they were employees and / or workers engaged under a series of contracts to perform work for which the Respondent was obligated to pay the Claimants.

[413]In relation to the definition of a worker under ERA 1996 section 230(3)(b), the Claimants contend that there is no requirement on them to show that the Respondent was under an obligation to provide work. Rather, ERA 1996 section 230(3)(b) simply requires that the Claimants undertook to perform work or services under the contract on the occasions that they worked.

[414]Applying Nursing and Midwifery Council v Somerville [2022] (in particular, paragraphs 54 and 55), the Claimants contend that even if the Respondent is right that the Claimants could freely withdraw from agreements to work up until the point of attending work (which is denied), then it is still open to the Tribunal to find that the Claimants promised to provide work once they began working and were workers for the duration of that shift. Respondent’s case

[415]The Respondent’s case is that the Claimants were not its employees or workers.

[416]In the first place, in relation to those FMEs who were paid through limited companies or other corporate vehicles, the Respondent sought to assert that the FME was not the true contracting party to any agreement with the Respondent but rather, the corporate vehicle was, as an undisclosed principal. Further, a number of the lead FMEs were in the position of receiving payment for their work as FMEs through the corporate vehicle concerned on the basis that they were being paid wages for work as employees of that corporate vehicle (as confirmed through subsequent declarations to HMRC) which had the consequence that they could not simultaneously be employees of the Respondent (on the basis that they could not have two employers in respect of same work).

[417]Alternatively, to the extent that each Claimant was the Respondent’s contractual partner, the contract or contracts were of genuine selfemployment. The Respondent’s position was that the Claimants were genuinely in business on their own accounts and are properly to be classed as having been self-employed, independent contractors. The Respondent contends that the contracts properly reflected the legal status of the Claimants, and all other FMEs. That is, they were self-employed.

[418]The Respondent contends that there was no mutuality of obligation: the Respondent had no obligation to offer work to the lead Claimants (or other FMEs) and the FMEs had no obligation to accept and undertake any work that was offered. They deny that there was an obligation of personal service and deny that there was sufficient control.

[419]The Respondent further makes the point that, analysing the Claimant’s case, it was not being suggested by the Claimants that their status changed at any point during the course of their engagements as FMEs. Thus, it was not pleaded by the Claimants, or asserted in the Opening Note, that it was the case that the status of the Claimants had changed over the relevant period. Rather, the pleaded case was that the Claimants were employees, alternatively workers, and not self-employed contractors, throughout any period of engagement.

[420]Hence, this was not a case in which the Claimants were asserting that they ‘morphed’ from being self-employed contractors (the status that all Claimants confirmed in evidence they genuinely intended to create at the time that they signed the 2009 contracts) to being employees / workers at some unidentified point during the currency of any engagements as FMEs.

[421]On behalf of the Respondent, it was suggested that this must be the correct position for the Claimants to take since they were working under exactly the same contractual terms from, at latest, 2009 onwards and there were also no significant changes to the manner of working in the period from 2009 onwards. Moreover, the previous contracts under which the Claimants were working prior to 2009 were expressly terminated on signature of the 2009 contract. All of the lead Claimants signed the new Contract in 2009 and understood that the signing of the 2009 contract resulted in the termination of all prior agreements.

[422]In any event, the Respondent submits that, those Claimants who were engaged prior to 2009 – for example, under the 1996 Contract – were also self-employed contractors during the period prior to 2009.

[423]Hence, the position of the Respondent is that the Claimants were selfemployed, independent contractors throughout the course of their engagements as FMEs and that they did not have employee / worker status at any point, whether when they were undertaking their duties as FMEs or otherwise. The true contracting parties and undisclosed principals

[424]An issue raised by the Respondent in its closing submissions related to that of identifying the contracting parties in any relationship by which the FMEs worked for the Respondent, where one of the contracting parties was effectively an undisclosed principal, and, if so, any legal consequences which flow from that.

[425]The starting point for any consideration of this issue was stated to be that, in order for a Claimants to establish the status for which they contend (whether that of an employee or worker), it was a prerequisite that there was a contract between any such Claimant and the Respondent. This was because ERA 1996 section 230(1) defines an employee as an individual who has entered into or works under a contract of employment and because ERA 1996 section 230(3)(b) defines a worker to be an individual who has entered into or works under “any other contract” meeting the conditions set out in that subsection.

[426]It was stated that it follows from those provisions that, for either status, it was essential that the Claimant had a contract with the Respondent as the absence of a direct contractual relationship is fatal to employment or worker status. Although a direct contractual relationship is necessary, it is not, on its own, sufficient to acquire the relevant status, as other conditions then need to be satisfied by examining the nature of the contractual relationship.

[427]It was asserted that, when assessing this issue, it was necessary to ‘follow the payments’ received by the lead Claimants in respect of their FME work. The evidence on this issue varied from Claimant to Claimant but has been summarised in the findings of fact set out above.

[428]In the case of Dr Forkuo, on the basis of the payments being made to PF Forensics Limited, it was contended by the Respondent that the evidence showed Dr Forkuo contracting with the Respondent as PF Forensics Limited’s agent with that corporate entity receiving the income and accounting for it accordingly.

[429]Dr Payne-James accepted that such an analysis applied to the equivalent arrangements by which he received payments from Payne-James Limited for his work as an FME.

[430]In the case of Dr Capper, the financial statements of Forensics Medical Limited were consistent with Dr Capper having contracted with the Respondent as Forensics Medical Limited’s agent, with the company as principal receiving the income and accounting for it accordingly.

[431]In the case of Dr Sarkar, the evidence accounting for the sums paid in respect of his work as an FME pointed to a partnership being the Respondent’s contractual partner prior to 3 May 2016, after which point Dr Sarkar was effectively contracting with the Respondent as UUU LLP’s agent, with that corporate entity having received the income and accounted for it accordingly.

[432]Similarly, in the case of Dr Green, the documentation in respect of the sums being paid for his work as an FME being paid to a partnership pointed to the partnership being the Respondent’s contractual partner.

[433]It was only in the case of Dr Fairhead, that the documentation showed the sums for her work as an FME being received directly by Dr Fairhead, so that the documents pointed to Dr Fairhead contracting directly with the Respondent, albeit on a self-employed basis.

[434]The Respondent characterised the position on behalf of the lead Claimants as being that, putting aside Dr Fairhead, the evidence in relation to where the sums paid for FME work went could and should be ignored by the Tribunal, and the Tribunal should conclude that the contract in each case was with each lead Claimant personally.

[435]Whilst the Respondent acknowledged that this might be argued to be consistent with the fact that each lead Claimant put his or her name on the applicable contract, the Respondent contended that such a position was without foundation on the basis that, not only did it ignore the fact that, in a number of cases, the position in relation to the contracting party changed after 2009, it also overlooked the operation of the undisclosed principal doctrine.

[436]The Respondent contended that by operation of the undisclosed principal doctrine, it mattered not that a Claimant might have signed his or her own name on the contract in 2009, or that the Respondent was unaware of the existence of a corporate or partnership entity, or that the Respondent was unaware that the Claimant was contracting as agent for another entity. A contract can still exist between two parties even though the identity of one is not known to the other because it is acting via an agent.

[437]It was suggested by the Respondent that the fundamental point was that, notwithstanding the undisclosed nature of the agency arrangement between agent and principal, the contract that comes into being is between the undisclosed principal and the third party, rather than between the agent and third party. In order to ameliorate the effects of that doctrine, further remedies are then provided by law, but the fundamental point remains: the contract is between undisclosed principal and third party.

[438]Accordingly, other than in the case of Dr Fairhead (where there was no other entity), in each of the other lead cases the Respondent contended that the application of the undisclosed principal doctrine results in the conclusion that the contractual relationship with the Respondent was with the relevant corporate / other entity. A number of points were made in support of this argument, as set out below.(1) The lead Claimants concerned had intended (whether at the outset, or after the formation of the relevant corporate vehicle / partnership) to act in relation to the Respondent as agent for that entity and intended that the entity would have the relationship with the Respondent, having regard to: (a) this being the effect of the HMRC documentation, in respect of which each such Claimant had confirmed during evidence that he honestly believed the documentation to paint a true picture when he had submitted it to HMRC; (b) the fact that any such intention was designed to benefit each such Claimant in order to provide the tax advantages that the HMRC documentation establishes, namely – (i) the setting off of business expenses of the entity as a whole against income including FME income; (ii) the payment of income tax on much reduced employment income; (iii) the payment of larger dividends at a more favourable rate of taxation; and / or (iv) the sharing of partnership profits with other partners so as to maximise the use of personal allowances / tax bands when accounting for tax; (c) had the relevant Claimants not had that intention but instead intended a direct personal contractual relationship with the Respondent, then they could not have filed the HMRC documentation in the way that they did.

(2) Any ignorance on the part of the Respondent as to these corporate / partnership vehicles did not preclude the contractual relationship being between the Respondent and the corporate / partnership vehicle.

(3) The fact that there might be or have been other (contractual) remedies available to the Respondent against the Claimants (personally) as a matter of the undisclosed principal doctrine did not affect the question of who the contractual relationship was between as a matter of law.

(4) The doctrine applied not only at the outset of the contractual relations, but also where, at a certain point, an individual changes from being a principal and becomes an agent for a corporate / other principal, even when this is done in the ignorance of the other contracting party.

(5) In the oral submissions on behalf of the Respondent, it was submitted that if the analysis was that of an umbrella contract, then the position may be analysed in terms of a novation from a contract with the individual FME to a contract with the company concerned.

(6) If the case was to be analysed as a series of contracts from one shift to the next, then each such shift would amount to the ‘outset’ of the contract and the doctrine would apply to each of those occasions separately.

[439]The Respondent submitted that, in all the lead cases except that of Dr Fairhead, the appropriate conclusion was that the Respondent’s true contractual partner at the material time was not the Claimant concerned and that such a conclusion was fatal to any such Claimant having employment or worker status.

[440]Thus, the Respondent argues that that, following the case of Siu Yin Kwan v Eastern Insurance Co Ltd

[1994] 2 AC 199

, at 207, any Claimant who accounted for his or her FME income through a company or partnership contracted with the Respondent as agent of the relevant company / partnership so that the FME contract was therefore between the Respondent and company / partnership as an undisclosed principal. The upshot was that this precluded a finding of employee / worker status as only a natural person can enjoy employee / worker status.

[441]The Claimants contended that the undisclosed principal doctrine has no application to the present case and sought to rely upon equivalent submissions having been rejected by Kerr J in Community Based Care Health Limited v Narayan [2019]

UKEAT/0162/18

[442]The facts of Narayan were that the Respondent was a not-for-profit company which provided the services of NHS GPs and had a contract with Primary Care Trusts to provide services locally in Gateshead. The Claimant was a GP who worked for the Respondent. She also did locum GP work through an agency, which was treated as self-employed work. She was one of about 70 to 80 doctors signed up with the Respondent to provide out of hours services. She was among 12 doctors who regularly worked the same shifts on a 12-week rota. She was not obliged to accept work and the Respondent was not obliged to provide any. She took holidays when she pleased, after warning the Respondent. The Respondent required her and the other doctors to abide by its ground rules for the allocation of shifts. They also had to perform to nationally set standards and could be penalised if they did not. She tended to work at one establishment, where she saw patients and treated them, like any other GP.

[443]In 2015, on advice from her accountant, the Claimant set up a limited company. She did not tell the Respondent about the company but provided its bank details so as to receive payments into its account from October 2015 onwards. The company also received payments from her locum work. She accounted for tax and national insurance through the company. Neither she nor the company sent invoices to the Respondent.

[444]On appeal, the Respondent had sought to argue that the company necessarily became the contracting party when it started to receive the Claimant’s remuneration, through operation of the undisclosed principal doctrine. On behalf of the Respondent, it was further argued that the Claimant could not be a “worker” (under ERA 1996 section 230(3)(b)), once the company became the contracting party, if she ever had been; the definition requires the “worker” herself, not the company, to undertake to do or perform personally any work or services to the other contracting party.

[445]On the facts of the case, Kerr J noted that the “interposition of the company was a well known construct done for the purpose of obtaining tax advantages, a purpose the claimant could not dispute” and the “tax authorities might want to argue, if they were to address the issue, that the agency relationship was the other way round, with the company “contracting” as agent and the claimant as principal” (paragraph 24).

[446]The Claimants, in the present case, rely on the reasoning of Kerr J at paragraphs 25 to 28 of that case, to the effect that (on the facts of that case) the undisclosed principal doctrine was excluded by applying the fifth of Lord Lloyd’s five propositions delineating the scope of the doctrine (at 207C-E) in Siu Yin Kwan (which was that “the terms of the contract may, expressly or by implication, exclude the principal's right to sue, and his liability to be sued” and the “contract itself, or the circumstances surrounding the contract, may show that the agent is the true and only principal”), with the reasoning of Kerr J being that “the terms of the claimant’s relationship with the respondent before October 2015 precluded substitution of the company from then onwards”, having regard to the following matters:(1) the relationship between the parties, and the Respondent’s activities and raison d’être, required that those performing the out of hours service must be qualified and approved GPs capable of satisfying the strict qualification and performance requirements set by the Respondent and by the NHS;

(2) the putative undisclosed principal in that case could not possibly meet the Respondent’s entry requirements as it was not a doctor, or even a person;

(3) the Respondent could not approve it without knowing of its existence;

(4) in so far as there was any right of substitution, it was to substitute a suitability qualified and approved GP, not an inanimate corporate entity;

[447]The Claimants contend that the same reasoning can effectively be applied in the present case, having regard to the features set out below.(1) The Claimants were doctors who were required to be suitably qualified, and fully registered and authorised to practise as medical practitioners, under their contract with the Respondent (see paragraphs 3.2 and 4.1 of the 1996 and 2009 FME contracts). An inanimate corporate entity would be incapable of these requirements.

(2) Under paragraph 3.2 of the 1996 and 2009 Contracts, the Claimants were also required to exercise “independent clinical judgement” and to practice in accordance with the General Medical Council Codes of Practice. Again, an inanimate corporate entity cannot do these things.

(3) The vast majority of the general undertakings, obligations and duties under both the 1996 and 2009 contracts can clearly only apply to a natural person, not a corporate entity (see paragraphs 4.3, 4.4 and 5.5 of the 1996 contract, and paragraphs 4.3 and 5.6 of the 2009 contract).

(4) The Claimants’ right to substitute was limited to another FME from the Respondent’s “pool” of FMEs (a point on which there was no dispute between the parties), not an inanimate corporate entity.

[448]Accordingly, in light of the above, the Claimants contended that it was clear that the same reasoning as that set out by Kerr J in Narayan applies to the Claimants in the present case, and the “fifth proposition” in Siu Yin Kwan precludes the application of the undisclosed principal doctrine.

[449]In any event, given that personal service is a prerequisite for both employee and worker status under ERA 1996 section 230, the Claimants suggested that it was difficult to see how the undisclosed principal doctrine could ever apply to defeat a Claimant’s case in respect of employee / worker status. If no personal service is found, the Claim will fail. If personal service is found, then the “fifth proposition” in Siu Yin Kwan is always likely to apply and preclude reliance on the doctrine.

[450]Further, it was submitted on behalf the Claimants that the only lead Claimants who accepted during cross-examination that they were operating a separate business or partnership capable of engaging the undisclosed principal doctrine at the time of the formation of contract were Dr Green, Dr Sarkar and Dr Forkuo. Dr Payne-James only paid tax via a limited company from March 2010; Dr Capper did so from 2016; and Dr Fairhead never did so. The doctrine could only possibly be of relevance to those three lead Claimants if the Tribunal found that they worked pursuant to a series of individual contracts.

[451]In the Respondent’s oral submissions, it was contended that the Claimants (and Kerr J) were in error through the reliance placed on the fifth of Lord Lloyd’s five propositions or statements as to the scope of the undisclosed principal doctrine (at 207C-E) in Siu Yin Kwan, on the basis that the first two of the propositions help with when the doctrine applies, whereas the next three propositions are dealing with the effects once the doctrine applies. Thus, the fifth proposition is to the effect that the contract can prevent the undisclosed principal from suing or being sued, but does not, in itself, prevent the doctrine applying.

[452]In the Respondent’s oral submissions, it was contended that Kerr J was fundamentally wrong through being fixated on the wrong issue in that it was wrong to ask if a corporate entity or other such entity could meet the requirements of the contract to undertake work. Reliance was placed on the Respondent’s written submissions which had already sought to make the point that it would be no answer to the undisclosed principal argument to say that the corporate / partnership entity could not itself meet the Respondent’s requirements in respect of FMEs because it was not a doctor, as that would be to pose entirely the wrong legal question as identified in Siu Yin Kwan, at 207G to 207H, in that the question was not whether the Respondent would have been willing for the other entity itself to do the work, but rather whether the Respondent would have been willing to enter into a contract with the other entity on the basis that it would provide the Claimant to do the work (and since the relevant Claimant did meet the relevant requirements, the focus would not be on the acceptability of the entity doing the work as opposed to the acceptability of it being a contractual partner). What mattered was whether the contract permitted someone to be provided who could meet such requirements. Thus, the requirements of the contract were not an impediment to the doctrine applying.

[453]Ultimately, I was not satisfied that the doctrine of the undisclosed principal operated so as to prevent an employee or worker relationship arising between the Respondent and the lead Claimants in circumstances where the lead Claimants had used a corporate or partnership vehicle to bill and receive fees for work undertaken as an FME, whether that vehicle was in place at the time that each lead Claimant concerned signed the applicable contract or was put in place subsequently.. The same issue had effectively arisen in Narayan. Whilst the decision of Kerr J on the point was technically obiter, it was very persuasive, particularly given the very similar facts (or “strikingly similar circumstances” to adopt the phrase used on behalf of the lead Claimants). As such, I was satisfied that the same reasoning as that relied upon by Kerr J applied in respect of those lead Claimants who had used a corporate or similar vehicle for the purposes of their work for the Respondent. As Lord Lloyd stated, in the second sentence of the fifth proposition in respect of the doctrine of the undisclosed principal, the “contract itself, or the circumstances surrounding the contract, may show that the agent is the true and only principal”.

[454]I was satisfied that was the position here. These were contracts signed by the FMEs on the basis that they would be personally responsible for providing any services under the contracts, which was consistent with both the contracts and the way in which services were subsequently provided by FMEs. The contracting party was not an agency providing the FME who happened to be on its books. In Catamaran Cruisers Limited v Williams

[1994] IRLR 386

, where an employee was advised to set up a limited company to continue working for the Respondent and the Respondent subsequently argued that the interposition of the company debarred a finding employment status, the EAT held (see paragraphs 13 and 14) that there “is no rule of law that the importation of a limited company into a relationship such as existed in this case prevents the continuation of a contract of employment”.

[455]Alternatively, as the Claimants argued, any consideration as to the applicability of the doctrine of the undisclosed principal had to be on the basis of the purposive approach adopted in Autoclenz and Uber (see Uber paragraphs 60 to 68) so that the focus had to be on the “reality of the situation” and the “reality of the relationship” (see Uber paragraph 62) rather than on an application of the principles applicable to ordinary contracts. In this regard, as was suggested in Williams (paragraph 14), evidence as to the relationship which might have existed between an individual and a company set up by that individual might be relevant evidence as to status but was not determinative and had “to be evaluated in the context of all the other facts as found”. Identifying the relevant employer

[456]The Respondent further characterised the Claimant’s case as being misconceived on the basis of the “two employer problem”.

[457]This was on the basis that all of the lead Claimants, other than Dr Fairhead, both genuinely considered themselves to be, and represented to HMRC, that they genuinely were, employed by another entity – such as a limited company or a partnership – in respect of their work as FMEs.

[458]Hence, Dr Forkuo was an employee of PF Forensics Limited in respect of the FME work he undertook. Dr Payne-James was an employee of PayneJames Limited. Dr Capper was an employee of Forensics Medical Limited. Dr Sarkar was an employee of UUU LLP. Dr Green was a partner of Green & McLachlan.

[459]The point was further made that it would have been entirely open to Dr Fairhead to structure her affairs in the same manner, “undertaking the FME work as an employee of Fairhead Limited, Fairhead LLP or Fairhead and Fairhead Partnership” but she chose not to do so.

[460]The complete flexibility available to the FMEs in this regard – which was to their benefit – was relied upon by the Respondent as a clear illustration that they were neither employees nor workers of the Respondent.

[461]Arising out of the above analysis, the Respondent contended that it was not conceptually possible, nor legally permissible, to be an employee / worker of two completely different and unconnected legal entities in respect of the same work.

[462]Thus, the Respondent argued that the Claimants concerned could not simultaneously have been employed both by the limited companies / partnerships and by the Respondent.

[463]Accordingly, the Respondent invited the Tribunal to conclude that, in respect of their FME work, to the extent they were employees / workers of anyone, it was of the legal entities which had been set up to receive payments for FME work and that they could not, as a matter of law, simultaneously be employees / workers of both the Respondent and the legal entity concerned.

[464]The Respondent placed particular reliance on the decision of the EAT in Specsavers Optical Limited v Patel [2019] to the effect that it was a wellestablished principle of employment law that one employee cannot simultaneously have two employers. The Respondent submitted that the Patel decision was “on all fours” with the Claimants’ cases (and binding on the Tribunal) in that the Claimants cannot simultaneously have been employed both by the limited companies / partnerships which they held out to be their employers and by the Respondent (any more than Mr Patel could be simultaneously employed by both Skelmersdale Specsavers Limited (the company running the local Specsavers branch, of which he was a Director) and Specsavers Optical Group Limited (the principal trading company of the Specsavers Group)). The Respondent had absolutely no involvement in, or connection with, the limited companies / partnerships that were established and operated by the Claimants

[465]In response, relying upon the decision of the Employment Appeal Tribunal in the case of Al Taweel v Stichting Female Journalists Network

[2023] EAT 159

(in particular paragraphs 16 and 17), it was submitted on behalf the Claimants that, in order to determine if the creation of a tax vehicle company by the Claimants acted to change their pre-existing employment status to one of self-employment, the Tribunal would need to evaluate all the material in the round. Absent, a proper forensic concession of employment status vis-à-vis individual tax vehicles, the Tribunal would need evidence that the reality on the ground was that the Claimants were employed by such vehicles.

[466]On the basis that the correct approach was as set out above, it was suggested that the Respondent’s assertion that the FMEs “genuinely considered themselves to be and represented to the tax authorities that they genuinely were, employed by another entity” (and any concession to that effect in cross-examination) was an insufficient basis for contending that the Claimants were employed by their respective tax vehicles.

[467]It was further suggested on behalf of the Claimants that whether an individual is employed by a third party entity is a question of law for the Tribunal, so that what a Claimant says or thinks about his or her employment status whether to his or her supposed employer, to HMRC or to anyone else (or in cross-examination) is not determinative of the legal question of whether the statutory wording of ERA 1996 section 230 applies to him or her (see Lady Hale in Bates Van Winkelhof at paragraph 39). Non-legally trained Claimants can, in good faith, be wrong about their employment status, particularly where they are routinely told by their employer that they are self-employed. As was made clear in Al Taweel, what is required is an application of the criteria in Ready Mixed Concrete to the relationship between the FMEs and their respective limited companies / partnerships (see paragraphs 17 and 18). On this question, the Claimants made the points set out below.(1) No evidence had been adduced whatsoever relating to the control those entities had over the FMEs. Indeed, it would be highly surprising that much (let alone sufficient) control was exerted given that many of them were the sole employees and / or directors of the company concerned.

(2) No evidence has been adduced as to what mutuality of obligation (if any) applied between the FMEs and their tax vehicle companies, particularly in terms of whether the Claimants had to perform any minimum amount of work or whether they had a contractual entitlement to be paid for it (this would be surprising given that the FMEs were effectively paying themselves, and one would expect to see some contractual evidence as to an obligation to pay to dislodge this notion).

(3) Less still had any evidence been adduced as to mutuality of obligation applying in periods of non-work between the FMEs and their tax vehicle companies.

(4) An analysis would also have had to have been undertaken as to whether the Claimants were in business on their own account vis-à-vis those companies.

(5) The evidence pointed far more strongly in the direction that the Claimants were the employees of the Respondent, and it was accordingly far more likely that their true employer during their periods of work was the Respondent and not any other entity.

[468]The Claimants submitted that their cases were on all fours with that of Al Taweel (see paragraph 16) in which there had been no adequate basis for a determination that the Ready Mixed Concrete test was met.

[469]The Claimants further submitted that the only evidence adduced from crossexamination about the lead Claimants’ relationship with their tax vehicles positively pointed away from there being a relationship of employment with those vehicles due to an absence of control and mutuality. It was suggested that the basis upon which any such company could be understood to have had a relationship of control and mutual obligations with the Claimant concerned was unclear.

[470]The Claimants further submitted that it was, in any event, doubtful whether the application of the “two employers” doctrine can survive the case of Uber, It was suggested that, in view of the protective purpose described in detail in Uber (for example, at paragraph 71), Parliament cannot have intended relationships which would otherwise fall within its definition of employment to fall outside such protection on the sole basis that a putative employee had created a limited company / partnership through which income was channelled for tax purposes. To hold otherwise would permit employers to circumvent protections by misclassifying workers as self-employed and making payment to a limited company a requirement for invoicing. That cannot have been Parliament’s intention.

[471]In so far the Respondent argued that it had been a matter of choice for the Claimants as to the arrangements made for receiving payment, the Claimants argued that the protective purposes described at paragraphs 71 to 87 of Uber would be undermined if employers could evade Parliament’s protections by granting the Claimants the choice as to whether to structure their affairs through partnerships, companies or on a sole trader basis.

[472]It is well recognised that an individual who is the sole director of a company and has a controlling shareholding may nevertheless be an employee of that company although not necessarily so (see Secretary of State for Business, Enterprise and Regulatory Reform v Neufeld [2009] ICR, CA, including paragraphs 78 and 88 to 90 as to the considerations potentially involved). However, what is clear is that even the existence of a written contract of employment and the receipt of payments from the company which are categorised as wages (and declared for tax on that basis) will not necessarily cause the relationship to be one which is treated as employment for employment law purposes.

[473]In the case of the lead Claimants, it was generally unclear whether any supposed employment relationship with the corporate or other tax vehicle had been evidenced by a contract of employment, although Dr PayneJames confirmed that, in his case, there was no written contract of employment.

[474]In fact, the evidence largely pointed away from any relationship between the individual FME and the corporate or other vehicle concerned being one of employment, having regard to the relevant criteria.

[475]The vehicle concerned was simply a convenient vehicle by which to achieve favourable tax arrangements. The Tribunal was not referred to any written contract of employment or statement of particulars of employment or even wage slips in respect of the employment. The evidence seemed to suggest that the amount paid in wages was designed to be an amount which minimised any liability for income tax or national insurance on the basis that the lion share of any fees earned by the FME would be received by the FME as dividends so as to minimise any tax liability.

[476]The Respondent made the point that a director / controlling shareholder and the company concerned were different legal personalities (as recognised in Neufeld). One can add to this that, theoretically, a director who was a controlling shareholder, could sack himself or herself (for example, if advice was given that it was no longer fiscally beneficial to be treated as an employee of the company). Indeed, the possibility of control being exercised is more than a theoretical possibility given that the ownership of the shares in a company might change or insolvency arrangements might result in a third party being in a position to exercise control. However, there was an absence of evidence of any control in practice in any relationship between the applicable FMEs and their tax vehicles, in that the Tribunal was generally not referred to any arrangements being in place which might have been expected to have been in existence had the relationship been one of employment, such as arrangements in respect of a defined role or job description, duties, working hours, disciplinary or grievance processes, taking holiday or sickness absences or other arrangements in respect of working time or wage slips. In terms of mutuality of obligation, there was nothing to suggest that the FMEs concerned had any obligation to the corporate vehicle. As the Respondent suggested in a different context, there was nothing to stop the FME simply deciding not to offer any shifts to the Respondent with the consequence that, once any expenses had been taken into account, the company would simply make a loss.

[477]In any event, it seemed unlikely that the issue as to whether the lead Claimants concerned were employees of their respective tax vehicles could be considered in a vacuum. Thus, for example, any assessment as to the extent of any control and / or mutuality of obligation which existed in any relationship between an FME and a corporate tax vehicle where the work concerned (for which the corporate tax vehicles were paying the FME) was that of undertaking shifts as an FME for the Respondent, was going to be impacted by the fact that the FME concerned was in a working relationship with the Respondent (and needed to be assessed in that context). Moreover, that was a relationship regulated by an agreement, whereas the Tribunal had no evidence of there being any such equivalent agreement in place in relation to any employment of the FMEs by their respective tax vehicles.

[478]At the heart of the Respondent’s reliance on the principle of not being able to have two employers in respect of the same work was a sense that the Claimants’ case involved wanting to have their cake and eat it: namely that they both wanted to be employees of their corporate vehicles because of the tax benefits and employees of the Respondent because of the employment law benefits. Of course, the applicable definition of employment may vary with the context, so that is not identical for both tax purposes and employment law purposes. Controlling directors who have been treated as employees for tax purposes are frequently (but not always) found by the Employment Tribunal not to be employees for employment law purposes, for example when their companies fold and they seek to challenge the refusal of the Redundancy Payments Service to meet their claims for redundancy payments, arrears of pay, holiday pay, notice pay and such like. For the reasons set out above, notwithstanding the declarations made by the lead FMEs concerned in their tax declarations, and notwithstanding the answers which they gave in cross-examination consistent with those declarations, I was not satisfied that, for employment law purposes, they were actually the employees of their respective corporate vehicles so as to cause the dual employer problem to arise and prevent them (if they were otherwise within the scope of the applicable definition) from being employees (or limb (b) workers) of the Respondent. Direct contractual relationship

[479]On the basis of the conclusions arrived at by the Tribunal in relation to the above issues regarding undisclosed principals and having two employers in respect of the same work, the Tribunal accepted that there was clearly a direct contractual relationship between the Respondent and FMEs.

[480]Based on a traditional offer and acceptance analysis, as advanced on behalf of the Claimants, the tribunal concluded that the Respondent had made offers to FMEs in the form of providing them with a written contract to sign which had then been accepted by each FME upon signature. There is no doubt that there was, on an ongoing basis, an agreement in place between FMEs and the Respondent. Thus, there was a direct contractual relationship between each lead Claimant and the Respondent.

[481]The key issue is that of establishing the nature of that relationship, and whether it was one of employment, worker status, or self-employed contractor. The applicable contract,

[482]It was the Claimants’ case that they were employed under “successive ‘Contracts for Services’, the most recent being dated January 2009” (see paragraph 7 of the Particulars of Claim). The Claimants maintained that the 1996, 2009 and 2014 contracts gave rise to an employment relationship.

[483]In so far as the Claimants sought to place reliance on the 1996 contract, the Tribunal was satisfied, as contended by the Respondent and for the reasons set out below, that the effect of the 1996 contract was of limited relevance to this case. In these cases, the relevant terms were the written contracts which the Claimants signed in 2009 and / or the 2014 Contract.

[484]In the case of all of the lead Claimants, the relevant contractual terms were those of the 2009 contract. None of the lead Claimants signed the 2014 Contract. In any event, it was not disputed that there were only very limited differences – and nothing of substance that would alter the status of Claimants - between the 2009 and 2014 contracts.

[485]Whilst there were more significant differences between the 2009 contract and earlier contracts such as the 1996 contract, the effect of paragraph 12.2 of the 2009 contract was that all previous agreements were terminated and superseded by the 2009 Contract. The Tribunal accepted that the consequence of that was that, in 2009, the 1996 contract and its terms died. The 2009 Contract falls to be construed on a stand-alone basis

[486]In any event, it was the position of both parties that the Claimants had a single status during the entirety of any periods of appointment: the dispute being as to what that status was. Neither party was asserting that the Claimants changed status at any point, albeit, while the Claimants say that their employment status remained the same, they make the point that that is not to say that the factual nature of the relationship did not change over time, in respect of which the Claimants say it clearly did. The relevance of contractual terms

[487]The Respondent effectively sought to argue that the Claimants’ case was based upon a misinterpretation of the present law insofar as it was suggested that the Tribunal should simply look at the “reality” of the situation between the parties.

[488]The Respondent suggested that this was legally incorrect and misrepresents the true scope and impact of the applicable authorities. Autoclenz made it clear that the “tribunal's task is still to ascertain what was agreed” (paragraph 32).

[489]Moreover, this was not a case where it was pleaded by the Claimants that the contracts did not “accurately reflect the true agreement of the parties” or that the contracts were in any way a “sham”.

[490]At face value, at paragraph 3.6 of the 2009 contract, the parties agreed that the “basis of this Contract is that you are self-employed and are and will remain responsible for income tax and National Insurance Contributions as a self-employed person” and “(n)othing in this Contract is intended to constitute or create a relationship of employment between the parties”

[491]The lead Claimants confirmed in evidence that they had read the wording of the 2009 contract, in particular paragraph 3.6 which was specifically to the effect that the FME was providing his or her services on the basis of being self-employed. There was no basis for any Claimant, when signing the contract, to have been under any doubt that they were agreeing to take on the FME role as a self-employed contractor. Each of the lead Claimants confirmed in their evidence that they were so aware.

[492]Thus, the lead Claimants all confirmed in evidence that, at the time of signature of the contracts:(a) they honestly intended to create a relationship as a self-employed contractor; and

(b) they had no intention to create a different relationship.

[493]This was consistent with the fact that every FME who was anonymously interviewed by HMRC in 2017/18, as part of its investigation as to taxable status, expressly confirmed that:(a) they were “working on a self-employed basis”; and

(b) they had “never been an employee of the MPS”.

[494]The 2009 contract was a negotiated agreement as demonstrated by the refusal of the FMEs to sign until amendments were made by the Respondent. The FMEs were educated individuals who were able to appreciate the legal consequences of the transactions into which they had entered. Certainly, in considering the negotiation of the 2009 contract, there was not the same imbalance of power, as there clearly was when the car valeters / washers (Autoclenz), or the taxi drivers (Uber) or the plumbers (Pimlico Plumbers), signed standard-form contracts unilaterally drafted by the employing party in those cases.

[495]Thus, it was clear to the Tribunal that the intention on the part of both parties had been to create a contractual self-employed relationship. Applying TerBerg v. Simply Smile Manor House Ltd (see above), this is a case where the Tribunal finds the self-employment clause to be a reflection of the genuine intentions of the parties. As such, the clause falls to be taken into account as part of the overall factual matrix in determining the correct legal characterisation of the relationship.

[496]Put another way, the evidence suggests that the parties mutually lacked the required intention to create a contract of employment. The express terms of the Contract so stated, and the lead Claimants confirmed as much, in crossexamination, that they genuinely intended to create a relationship of employment and not self-employment. The same obviously applied to the Reality of the relationship

[497]Having sought to ascertain what was agreed, then an analysis of the 2009 contractual terms and the evidence in this case demonstrates very clearly that the written terms represent the true terms of the bargain between the parties.

[498]The evidence before the Tribunal showed that the way that things worked in practice was broadly in accordance with the terms of the contract, having regard to the points set out below.(1) The lack of mutuality of obligation set out in the contract reflected the position in practice in that there was no guarantee of work and no obligation to accept work that was offered.

(2) Fees rather than wages were paid, and were paid gross, as set out in the contract.

(3) No tax or National Insurance was deducted

(4) No expenses were paid to the Claimants, who were responsible for their own costs / expenses incurred in performing the FME services, with those costs being set off against / deducted from their tax liabilities.

(5) The reality of the obligation to be insured was reflected in the fact that all of the lead Claimants obtained indemnity insurance specifically in respect of their FME work.

(6) The Claimants were genuinely required to pay for training and CPD that was a mandatory requirement for them to work as an FME (save for the example of the FMEs being paid to undertake training on the System One computer system).

(7) The contract reflected the FMEs’ responsibilities, as self-employed persons, under the Health and Safety at Work Act and related legislation and Codes of Practice. (8). The Claimants accepted that they retained ownership of the medical notes that they made when providing services as an FME and that they were responsible for the safe and secure storage of the same. (9) Those Claimants who were aware of the relevant provisions of the GDPR correctly registered with the ICO. Most of the Claimants obtained the ICO registration in the name of the limited companies of which they were directors.

[499]Thus, the Tribunal concluded, in any event, that, broadly speaking, the contract reflected the reality. Mutuality of Obligation (1) Extent of obligation to offer and / or accept work

[500]Paragraphs 3.7 and 5.5 of the 2009 contract provided that there was no obligation between the parties to provide or accept work. However, paragraph 3.7 also stated that once a shift had been accepted “then, unless the provisions for changing that period of duty are complied with you are obliged to undertake that period of duty”. It can be seen that this obligation would only have arisen once a shift had been accepted. To this extent, any such obligation was subservient to the absolute right of FMEs not to apply for any shifts in the first place and the absolute right of the Respondent to decide to provide no work to an FME. As such, the paragraph did not, in itself, create any mutuality of obligation.

[501]However, once a shift had been accepted, there was a qualified obligation to undertake a shift (qualified by being subject to the arrangements in respect of changing a period of duty). Further, it can be added that the Respondent was then obliged to provide work, in the sense of the shift to be worked, and obliged to pay the FME for work undertaken.

[502]In practice, the obligation on FMEs at paragraph 3.7 does not appear to have been a strictly enforced obligation, although there was the example of shifts being withheld from Dr Payne-James in response to repeated cancellations at short notice.

[503]In any event, although, in a strict contractual sense, an FME could become obliged to undertake a shift, once accepted, it does not follow that the nature of that obligation was one of employment or worker status. The Respondent points out that many truly self-employed individuals, such as barristers, are contractually obliged to do work personally (without being able to offer a substitute). This may not be the best example given that late changes of counsel are not uncommon, but the point is nevertheless valid.

[504]Leaving aside the issue as to the position as to once a shift had been accepted, it can be seen that the 2009 contract (and the 2014 contract) were to the effect that there was no contractual obligation on the Respondent to offer work, and no obligation on the FMEs to accept any work. This was consistent with the responses given by those FMEs interviewed by HMRC as part of the status investigation commencing in late 2017.

[505]The Respondent was effectively free, both to cease offering work to the FMEs and to offer fewer opportunities. Indeed, as CNPs were introduced and the number of areas decreased, there did over time become fewer and fewer shifts for FMEs to undertake. It was also the choice of FMEs as to what work to prioritise and undertake.

[506]The position of the Claimants was that the provisions of paragraph 3.7 of the contract did not reflect the practical reality of the relationship (see Uber) so that the question for the Tribunal was simply whether the relationship met the thresholds set out in ERA 1996 section 230. It was argued that there was an obligation to distribute shifts fairly and / or, at a minimum, there was an obligation to provide some work to those who wanted it – which was the basis on which Anne Reilly operated. The Claimant contended that it was a fundamental aspect of the relationship that the Respondent was always obliged to provide at least some work when an FME offered to cover shifts, albeit the FME might not get all of the shifts for which the FME had put himself or herself forward.

[507]Thus, paragraph 32 of the Grounds of Claim asserted that the Respondent was “under an obligation to offer work when available and the Claimants were under a corresponding obligation to accept work when offered”

[508]However, both aspects of this assertion appear to be inconsistent with both the contractual terms and the reality of the way in which the parties operated. Contractually, as stated above, paragraph 3.7 of the 2009 contract stated that the “Authority does not undertake or guarantee that any work will be made available to you or as to the amount thereof” and, if “a period ‘on duty’ is offered to you, there is no obligation on your part to accept that period of work”. These provisions sought to assert that there was no contractual obligation to offer work or to be available for, or to accept, any work.

[509]This was not inconsistent with reality. The Respondent certainly sought to keep FMEs happy by making sure that, in so far as possible, there was an equitable distribution of work to those making themselves available for shifts. However, it was not obliged to do so. Again, the Tribunal has the example of the Respondent deciding unilaterally not to offer shifts to Dr Payne-James. Whether the reasoning for doing so was justified or not, the Respondent was in a position to do so at its discretion.

[510]Similarly, there was no real obligation on the Claimants to accept work when offered, at the point of being offered. Even once accepted, in practical terms there was nothing to stop an FME cancelling a shift and there was little that the Respondent could do about a late cancellation. (2) Extent of obligation to offer availability

[511]Paragraph 34 of the Grounds of Claim pleaded that the “Claimants were required to liaise with the … Respondent’s officers responsible for drawing up and co-ordinating an attendance roster and identify their availability for the provision of such services”.

[512]Again, this part of the Claimant’s pleaded case derives in part from paragraph 5.5 of the 2009 contract, which provided that, “(w)hilst there is no obligation on you to provide services under this Contract, you will liaise with those made responsible for drawing up and co-ordinating an attendance roster for the provision of such services, to identify your availability to participate in the roster”. The Respondent’s case is that the reference to liaising with those responsible for drawing up the roster in the second part of the clause is clearly subject to the first part, such that there was no independent obligation to liaise with those responsible for drawing up the roster (if an FME did not wish to offer any shifts). This was consistent with the evidence of Dr Green to the effect that there was no obligation to respond to the rota template when sent out if no shifts were being sought and that the only consequence of not responding to the Rota Management Team was that no shifts would be offered. It was also consistent with the answers given by the FMEs who were anonymously interviewed by HMRC as part of the status investigation.

[513]On behalf of the Claimants, it was argued that the Respondent’s interpretation of paragraph 5.5 could not be correct as, if it was, then the inclusion of this paragraph would be utterly pointless. The Claimants argued that the existence of such an obligation was consistent with the evidence in practice to the effect that FMEs had to fill out the roster or at least inform the Respondent when they did not want any shifts. This certainly made sense in terms of having a good working relationship with the Respondent and the rota management system was premised on the assumption that FMEs would respond by offering the shifts for which they were making themselves available. That was the arrangement in place. However, the reality was that an FME who was not in a position to offer any availability effectively had a choice between responding to the rota request form by offering no shifts or not responding at all.

[514]The Claimants sought to suggest that there was evidence to the effect that those who failed to comply with the requirement to “liaise with those made responsible for drawing up and co-ordinating an attendance roster for the provision of such services, to identify your availability to participate in the roster” were dismissed. In fact, from the evidence of action being taken to terminate the contracts of certain FMEs in 2013, the steps were not being taken as a disciplinary measure for having failed to return the attendance roster but rather on the basis that they had ceased working altogether for more than twelve months so that their vetting had lapsed. (3) Extent of obligation to allocate work fairly

[515]Insofar as the Claimants sought to contend that there was a contractual duty on the Respondent to allocate shifts fairly between FMEs, there was no specific express contractual duty to this effect.

[516]In the absence of an express term imposing a contractual duty requiring the fair allocation of shifts, any such duty would only arise if there was found to be an implied term in the contract to such an effect. In this regard, the Respondent relied upon the established principle that implied obligations cannot trump, override or contradict express terms of a contract. A number of cases can be cited as having established and confirmed such a principle, namely Reda v Flag

[2002] IRLR 747

, Johnson v Unisys Limited

[2001] ICR 480

, and Edwards v Chesterfield Royal Hospital NHS Foundation Trust

[2012] IRLR 129

. This was in addition to paragraph 88 of Autoclenz (above) to the effect that, once it is established that the written terms of the contract were agreed, it is not possible to imply terms into a contract that are inconsistent with its express terms.

[517]In any event, any such implied term would be inconsistent with the express term at paragraph 3.7 to the effect that the Respondent “does not undertake or guarantee that any work will be made available to you or as to the amount thereof”.

[518]Another difficulty arose from the express term of the 2009 contract at paragraph 12.3 providing that any variation or amendment to the contract must be in writing and signed by the FME and the Respondent, with there having been no such agreed, written, signed amendments or variations.

[519]As such, I accepted that implying such a term into the contract could not arise, whether on the basis of being implied by operation of law; or implied as necessary to give the relationship business efficacy; or as a contractual term arising by custom and practice (given the lack of evidence to such effect). The mere fact that Anne Reilly felt the need to distribute work fairly, or acted in a fair way, is not evidence, in itself, of there being a contractual obligation to be fair arising by custom and practice.

[520]Thus, in so far as the Claimants sought to argue that references to fairness in the various iterations of the FME rota management document gave rise to a contractual entitlement, I accepted that any such an argument was not well-founded. Any obligation of fairness in the allocation of shifts could not be introduced as a contractual term inconsistent with the express terms of the contract. The FME rota management documents were not contractual documents. They could not override the express terms of the contract. Thus, the indication in the rota management document that “FHS will take into account: Fair distribution of work” cannot override the express contractual position that there was no right to any or any amount of work. There was no reference to the FME rota management document in the contract such that the relevant provision would be incorporated as a contractual provision. In any event, a purported obligation to “take into account: Fair distribution of work” was not apt for incorporation. It was in the nature of an aspirational provision, which was not sufficiently precise to be incorporated into the contract (see, for example, Malone v British Airways plc

[2010] IRLR 32

, CA). The indication in the rota management document was not that the Respondent would guarantee or ensure a fair distribution of work but rather that the Respondent would take into account a fair distribution. To the extent that there might have been said to have been any obligation, it was in terms of an obligation to give something consideration rather than an obligation to offer any work, or any amount of work. Thus, the Respondent could, for example, consider the issue of fair allocation and then decide not to give effect to it (for good reason or no reason). The reference to “Fair distribution of work” was too vague and imprecise to be contractual in any event, as illustrated by the issues which would need to be addressed if this provision was held to be contractual, in terms of how the requirement of fairness would be met given all the different factors and approaches which might arise. The reality was that different FMEs did undertake different amounts of work, which, in itself, demonstrated that there was no legal obligation on the part of Respondent to offer and no obligation on the FMEs to accept the same levels of work. (4) Acceptance of shifts

[521]On behalf of the Claimants, it was accepted that the amount of work undertaken by an individual FME might vary over time. However, it was suggested that the same point could have been made of Uber drivers. Against this, it was asserted that “all” FMEs were heavily reliant on this income and worked frequently for the Respondent. This may have been true in respect of many FMEs but the evidence certainly did not suggest that it was true in respect of all FMEs. That said, one would have expected the position to vary from FME to FME.

[522]Moreover, it was suggested on behalf of the Claimants that where individuals had taken lengthy breaks (for example for shielding or extended holidays), such circumstances were likely to amount to temporary cessations of work within the meaning of ERA 1996 section 212 and would not be inconsistent with the continuing existence of mutual obligations in periods of non-work.

[523]On a detailed analysis of the shifts worked by FMEs, the Respondent pointed out that it can be seen that FMEs worked fairly regularly when it suited them, but, equally, they were able to pause or cease working for significant periods as they wished. Either way, the Tribunal accepted that the reality of the situation was that FMEs were essentially accepting shifts and working when it suited them and did not have to do so at all, save for once a shift had been accepted, in which case the arrangements in respect of cancelling shifts applied, as discussed below. Thus, the reality on the ground would seem to have reflected the reality of the contractual position: that there was no mutuality of obligation between the FMEs and the (5) Cancellation of shifts

[524]Paragraph 35 of the Grounds of Claim pleaded that there was an “unwritten rule that if an FME cancelled any “on duty” periods, they would be removed from the rota”.

[525]The evidence did not establish that there was an unwritten rule that if an FME cancelled any ‘on duty’ periods, they would be removed from the rota. The existence of an unwritten rule to this effect would have been contrary to paragraph 12.3 of the 2009 contract which expressly provided that no “variation or amendment to this Contract shall be effective unless recorded in writing and signed by you and by the Commissioner’s Representative”. Anne Reilly confirmed in cross-examination that there was no such unwritten rule. The Tribunal concluded that there was no such rule.

[526]Certainly, there was the example of Dr Payne-James, who had cancelled a number of ‘on duty’ shifts at short notice, being temporarily removed from the rota for a specified period, albeit he was able to cover ‘gaps’ during that period. In the case of Dr Payne-James, it was the frequency / number of times that shifts had been cancelled that prompted the step taken. The evidence suggested that this was an isolated case in that cancelling shifts was fairly common without there being any real comeback. Moreover, not being offered shifts could not really be said to amount to a sanction in the context where there was no contractual obligation to offer any shifts in the first place. The action taken simply reflected the exercise of the discretion which the Respondent had, if rarely exercised, not to offer any shifts since there was no contractual requirement on the Respondent to offer shifts . (6) Extent of obligation to work shift or find replacement

[527]Paragraph 37 of the Grounds of Claim also contended, in terms of mutuality of obligation, that there was an obligation, on each Claimant who had accepted a particular duty, to perform that work, in return for payment at the specified rates.

[528]Certainly, as stated above, paragraph 3.7 of the 2009 contract provided that if “you decide to accept a period ‘on duty’, then, unless the provisions for changing that period of duty, are complied with you are obliged to undertake that period of duty”.

[529]However, this provision did not give rise to mutuality of obligation outside of the shift in question since it could only potentially apply once the Respondent had offered a shift to the FME concerned (there expressly being no obligation on the Respondent to do so), the FME has chosen to accept that shift (the FME not being under any obligation to do so) and where the provisions for changing that period did not apply.

[530]Thus, the Tribunal accepted that, at its highest, it was a contingent obligation which would only have applied if a number of other, entirely voluntary events occurred.

[531]Further, the assertion made in the Grounds of Claim to the effect that there was an obligation on each FME who had accepted a particular duty, to perform that work, was not correct in so far as a shift could clearly be cancelled with at least 10 days’ notice.

[532]In those circumstances, even though the FME had already accepted the duty, following the provision of the draft rota, the FME could cancel that shift for any, or no, reason without any obligation on the FME to find a replacement to cover the shift. The obligation to find a replacement would, in these circumstances, have been on the Respondent.

[533]Any obligation on the FME (for example, as in the rota management document) to find a replacement FME from the approved list, only arose if the FME wished to change his or her rostered duty with less notice than 10 days and for something other than “unforeseen circumstances” (such as sickness or accidents, in which case the Respondent was responsible for finding a replacement).

[534]The Claimants contended that this was an obligation to work or provide a substitute, as is commonplace in many of the cases on employment status, such as Smith v Pimlico, where the case law is to the effect that a (fettered) right of substitution does not negative mutuality. Any such obligation arose as an alternative to working a shift which had been accepted in circumstances where the FME was seeking to cancel a shift at short notice and without being able to rely upon unforeseen circumstances. In reality, the evidence suggests that this was an obligation which, in practical terms, was never enforced. If an FME cancelled and failed to fulfil any obligation to find a replacement, the Respondent ended up doing so.

[535]Thus, the Respondent sought to point out that, notwithstanding the length of time for which the Claimants were collectively engaged by the Respondent, there was not a single example in the voluminous Bundles before the Tribunal of an FME being compelled to undertake a shift. It simply did not happen. Either the FME would find a replacement, the Respondent would do so, or the shift would be covered by the use of crosscover. On the other hand, there was at least the potential threat of sanction, as occurred, for example, with Dr Payne-James. The evidence of Anne Reilly accepted that the Respondent had the power to sanction in such circumstances, but she chose not to because of the particular relationship she had with the FMEs.

[536]Properly analysed, the Tribunal concluded that any obligation of this nature was a contingent obligation in that it was dependent upon the voluntary act of an FME in accepting a shift in the first place, was not a mutual obligation and only arose in very limited circumstances with it not being enforced in practice. As such, the Tribunal was not satisfied that it assisted the Claimants in establishing the irreducible minimum mutuality of obligation required for any overarching contract to be classified as a contract of employment. (7) Effect of Obligation to give notice

[537]At paragraph 36 of the Grounds of Claim, the Claimants relied upon the contractual provision for the 2009 contract to “continue in force with effect from 12 January 2009, until terminated in accordance with any provision permitting termination” which potentially involved the parties to the contract being required to give six months’ written notice of termination. In other words, the Claimants were suggesting that the notice provisions gave rise to mutual obligations. However, the continuation of the contract, in itself, until terminated in accordance with the terms of the contract, and the obligation to do so by notice, did not create any obligations on either party to offer or do work. As an alternative to terminating the contract in this way, there was nothing stopping the Respondent simply ceasing to offer an FME work or an FME simply seeking to offer any availability to work shifts. (8) Witness statements

[538]On behalf of the Claimants, significant reliance was placed upon the contractual requirements in respect of providing witness statements as being indicative of the requisite mutuality of obligation existing, even between shifts.

[539]Thus, the Claimants relied on the contractual obligation to provide witness statements, albeit on payment of a separate agreed fee, and to co-operate with disciplinary investigations involving police officers, as being indicative of an employment relationship or imposing an obligation to work outside of an occasion when an FME had agreed to undertake a shift.

[540]However, there would have been no need to include such a provision in the contract if the relationship was one of employment, since employees would have been obliged to comply with such a request in any event because they were employees. Thus, for example, it can be seen that there was, therefore, no equivalent provision in the employment contracts of CNPs, although they were performing an equivalent function to FMEs and were similarly likely to be required to provide witness statements or to co-operate with disciplinary investigations. On this basis, the Respondent contended that the contractual arrangements in respect of witness statements amounted to a key feature of the status of FMEs as self-employed workers and not employees.

[541]In fact, the evidence before the Tribunal in the form of invoice sheets shows that witness statements were infrequently sought, although, under the 2009 contract, the obligation potentially arose “on every occasion when providing services under the terms of this Contract as an FME…”. However, from this it can be seen that any obligation was not a freestanding obligation that arose irrespective of the offer and acceptance process that applied to work generally under the contract. The obligation arose out of the FME having accepted and worked a shift. The requirement for a witness statement to be provided would then potentially arise out of the FME having fulfilled the obligation to work in the period of duty which had been accepted.

[542]Moreover, even if there was a freestanding obligation on the FMEs to provide witness statements, there was no obligation on the Respondent to ask for one. The FMEs had no contractual right to do a certain amount of witness statement writing. The Respondent was entitled contractually not to ask, in which case an FME had no requirement (or entitlement) to do work. Accordingly, the position in respect of witness statements did not give rise to any mutuality for the purposes of establishing employment status over the course of the entire contract. Conclusion on mutuality of obligation

[543]FMEs were free to refuse work; and even once work was accepted, to cancel it. On the other side of the coin, there was no obligation on the Respondent to offer work. Indeed, the Respondent could cancel bookings once accepted (subject to paying for work cancelled in accordance with the cancellation policy). The Tribunal concludes that there was not the mutuality of obligation required for the status of FMEs be that of employees (or workers) in respect of the periods between shifts. The requisite mutuality of obligation only existed in respect of the shifts worked.

[544]The conclusions of the Tribunal in relation to mutuality of obligation, at least in relation to any overarching contract, potentially determine the issue of employment status. However, the Tribunal turns to consider the other relevant criteria Personal service .

[545]In order to qualify either as an employee (or as a worker), it is a necessary constituent of the contract that it provides for personal service. Thus, personal service is a requirement without which there cannot be an employee or worker contract. The Claimants seek to rely on being required to do work personally as FMEs.

[546]The obvious point which should be noted is that personal service on its own is not sufficient to give rise to a contract of employment. The Respondent gave some examples of situations where personal service might be required of a true self-employed contractor, such as the builder who is vetted to do work in a secure area such as a prison.

[547]The Respondent made the point that, when assessing whether the contract required personal service, the Tribunal should take care to distinguish the enquiry from whether the FME was in fact providing a personal service. The Respondent suggested that this was not the correct question for present purposes. The focus must be on the contract and whether it obliged the FME to do work personally for the Respondent.

[548]The evidence suggested that a number of tasks which arose in connection with providing services under the contract were undertaken by third parties, such as spouses, partnership partners, or employees (of the corporate vehicles used to receive fees, so that such expenses then became deductible from the income received). Liaison in relation to the rota and submitting requests for shifts could be undertaken through such third parties. Similarly, invoicing the Respondent for services undertaken by the FME was a task which, for many FMEs, including many of the lead Claimants, was undertaken through invoices submitted by, and payments made to, the applicable corporate vehicle. The task of generating and sending the invoice could be delegated to a third party. In terms of having to have systems in place for the retention of medical records, some of the FMEs effectively registered with the ICO in the name of the corporate vehicle concerned. The 2009 contract specifically provided a contractual right (at paragraph 12.4) for the FMEs to delegate their right to make representations, discuss and consult on “all matters concerning the provision of your services under this Contract, including the operation of any variation to this Contract”.

[549]Thus, in respect of some of the aspects of the arrangement between the Respondent and FMEs, there was no obligation that FMEs personally perform the activity, albeit these could be described as being activities which were ancillary to the duties of an FME.

[550]However, in terms of the work involved in attending an ‘on duty’ shift, the position effectively was that the FME who had accepted the shift would generally be expected to complete the shift personally. That said, the evidence showed that there was no requirement to do work at all prior to ten days before the shift in question, as the shift could be handed back for any or no reason. Even after that date, the shift could be handed back where there were “unforeseen circumstances” (such as sickness or accidents, in which case the Respondent was responsible for finding a replacement). Otherwise, the arrangements in place allowed an FME to choose not to do a shift and send a replacement from the pool of FMEs. Whilst many FMEs undoubtedly sought to comply with these arrangements, the reality was that shifts would get cancelled without the FME concerned finding a replacement thereby leaving the Respondent having to source a replacement or make cover arrangements.

[551]Thus, an FME could substitute his or her labour with that of another FME. FMEs did provide substitutes; sometimes without reference to the Respondent. As such, the Respondent sought to contend that the ability to substitute in this way was a negative pointer away from personal service and employment status.

[552]The classic example of a contractual clause that may defeat a requirement of personal service is where there is a right to substitute another to perform the obligations under the contract (see Express and Echo Publications Ltd v Tanton

[1999] IRLR 367

). In Pimlico Plumbers v Smith

[2018] ICR 1511

, SC, the right to substitute was assumed to be contractual and was determined to be limited to another Pimlico operative but was not limited to cases of illness (see paragraphs 26 to 28). The Supreme Court determined that in that case the Tribunal was entitled to hold that the Claimant was obliged to do work personally (see paragraphs 33 to 34).

[553]In the case of FMEs, the reality was that the ability to substitute was limited. It arose under arrangements put in place by the Respondent for managing the rota. It was limited to other FMEs.

[554]Moreover, the ability to provide a replacement rather than working a shift did not amount to a formal substitution clause. If it was to be viewed in terms of the right to provide a substitute, then it was a fettered right to provide a substitute, in that the substitute had to be another FME, which would not, on its own, have prevented the contract being one of personal service. As such, the Tribunal was not satisfied that this acted so as to negate personal service.

[555]However, the requirement of personal service was effectively limited to providing personal service in respect of the shift being worked and any duties arising out of the shift, such as the provision of a witness statement. Control

[556]It can be seen that the perceived need for far greater control was one of the key drivers behind the move towards an employed CNP-model, with limited input from FMEs engaged through an agency (Reed).

[557]Thus, it was suggested on behalf the Respondent that there “is a clear irony in this case in that:(i) the lack of control that R had over the FMEs, which made it exceptionally difficult to ensure that a comprehensive service was provided to detainees, was a key driver in the decision to move towards a model of provision by employed CNPs; but

(ii) the termination of the Contracts of FMEs has led to this claim and the assertion being made by FMEs for the first time that they were in fact employees” having “previously, genuinely and correctly considered themselves to be self-employed contractors in business on their own account”.

[558]The irony is not quite as clear as the Respondent suggests given, also, the close temporal proximity between the issues raised by HMRC in respect of status (which had the effect of undermining the existing model) and the decision to move to a new model for the provision of FME services.

[559]Paragraph 38 of the Grounds of Claim alleged that the Respondent “had ultimate control over each Claimant in the performance of their work, and each was subject to the … Respondent’s orders and directions”.

[560]This assertion is inconsistent with the contractual provisions under the 2009 contract which made it plain that any obligations on the Claimants as FME’s were subservient to their professional obligations as doctors so that paragraph 3.2 of the 2009 contract recognised the status of FMEs as “a professional exercising independent and impartial clinical judgement” who would be “obliged at all times to practise in accordance with ethical and other professional standards required by the General Medical Council” with the consequence that all of the “obligations which arise under the terms of this Contract shall be subservient to your obligation to practise in accordance with these standards”.

[561]Thus, all of the obligations on FMEs were, contractually, subject to the FMEs independent and impartial clinical judgement.

[562]This was also the position in practice. The FMEs were the medical specialists and the Respondent was not in a position to, and was not contractually entitled to, control or direct that work. Obviously, as with any contractor, the Respondent identified what the work that it required to be done was, but that is not the same as controlling the FMEs when doing the work.

[563]An example of the independence of FMEs can be seen from the position in respect of medical records. Whilst the 2009 contract imposed an obligation on FMEs to make and retain medical records (paragraph 4.8) it was on the basis that FMEs were responsible for their retention and secure storage which gave rise to the legal requirement for the FME to be registered with the ICO.

[564]Paragraph 39 of the Grounds of Claim alleged that the “Claimants were not permitted to undertake any other work for any other organisation while working in an FME role for the … Respondent”.

[565]The point being made is very limited in scope. Effectively, it is only correct in so far as it applies to those times when FME’s were actually working a shift. Outside the hours of any shift which an FME had agreed to work, there was no restriction on FMEs undertaking other roles, other than roles that would result in an obvious conflict of interest (such as roles as a coroner or magistrate). Thus, the FMEs were contractually entitled to “undertak[e] other engagements or employment” (paragraph 3.8). There was no requirement on the FMEs to seek the consent of the Respondent to undertake any form of employment or engagement, or even to inform the Respondent that they had done so. This was directly contrary to the position with regard to employees working for the Respondent such as the CNPs who were contractually required not to engage in any other occupation or profession or business without the written authority of the Respondent and for whom working outside without authority was a disciplinary offence.

[566]Thus, the lead Claimants were able to undertake other employment or work alongside their engagement with the Respondent with many of them undertaking a wide range of remunerative activities.

[567]Additionally, paragraph 39 of the Grounds of Claim placed reliance upon Respondent having “threatened FMEs with “immediate suspension” and/or “termination” if they carried out work for other organisations or police forces during any “on duty” periods”.

[568]Clearly, if the FME concerned was being paid for a shift of a certain duration, then the Respondent was entitled to expect that the FME would not be doing any work for anyone else during this period of time. However, that would be the position for any independent contractor being paid by the hour. Indeed, the Respondent suggests that doing other work when being paid by the Respondent would have amounted to fraud (whether the individual concerned was an employee or an independent contractor). As such, it can be seen that this particular factor is not a realistic measure of control.

[569]The further point which was made on behalf of the Claimants was that the Respondent decided what the geographical boundaries were for FME work. The FMEs had no influence over this. The fact that the Respondent set these out, and then changed them without consultation, was stated to be an indicator of control and subordination. Paragraph 40 of the Grounds of Claim relied upon the Respondent having “had an absolute discretion to dictate the area within which any Claimant provide their services”.

[570]The Respondent suggests that the position was otherwise. Paragraph 5.1 of the 2009 contract provided for there to be agreement over the area in which an FME provided services. However, it was the FMEs who decided in which areas they wished to apply for shifts. The FME would simply insert a number, which corresponded to an Area, in the box for a particular shift time on the rota proforma. The Respondent would then decide whether or not to accept the FME’s offer to work that shift in that area. There was no scope for the Respondent to dictate that the FME work in a different area on the requested date / time. Thus, the Respondent could not dictate the area within which any FME provided his or her services. The Respondent could only accept the offer of an FME to work in a particular area.

[571]A further point made on behalf the Claimants was that another indicator of control was that the Respondent could dictate to FMEs that they had to work in a particular pattern, with no exceptions made for any particular circumstance or need. Self-employed people are able to choose their working hours much more flexibly. Working hours were effectively set by the Respondent in that there were four designated shift times for which FMEs could offer their services. However, this was not control in the relevant sense. It simply amounted to the Respondent indicating the nature of the work required, in the sense of FME services being required between particular hours. No FME was forced to work those particular hours. They could choose whether to bid for a shift for those hours or not.

[572]Paragraph 42 of the Grounds of Claim relied upon the Claimants being expected to follow the Respondent’s corporate values and behaviours.

[573]The Respondent contends that it is an understandable expectation on anyone providing services to a public authority, whether as an employee or an independent contractor, to share the corporate values and behaviours of that public authority. The example was given by the Respondent of independent sub-contractors signing up to Site Values on a building site, with it being suggested that any expectation made of FMEs was no different. The Tribunal was satisfied that, to the extent that such an obligation can be established, it would not be inconsistent with self-employment.

[574]As an indicator of control, paragraph 41 of the Grounds of Claim relied upon each FME having to comply with the Respondent’s standing operating procedures.

[575]However, the fact that some Standard Operating Procedures (SOP) applied to FMEs reflected the fact that the work was taking place within a custody environment where the Respondent had legal responsibility for the safety and welfare of detainees. It was not indicative of status. The Claimants’ argument was that the fact that a measure inserting control may be needed for good reason does not stop the arrangements in respect of that element of control from being relevant for the purposes of any enquiry as to the employment status of those subject to the control. This is certainly true, but any relevance may be limited if the need for the arrangement is such that the arrangements would have been made regardless of the status of the individual providing the services in issue. Thus, the point was made by the Respondent that similar requirements continue to be made now that FMEs are supplied through an agency, and therefore not employees or workers of the Respondent.

[576]As a further indicator of control, paragraph 43 of the Grounds of Claim relied upon each FME not being allowed to carry, prescribe or dispense their own medication on the Respondent’s property, with it being pleaded that this represented a significant restriction on their freedom to act within their professional duties, with the Respondent stipulating how FMEs should prescribe and administer medication and record information on their National Strategy for Police Information Systems (UK) (NSPIS) .

[577]In fact, there was no restriction on FMEs prescribing whatever medication they considered to be appropriate, consistent with exercising their own “independent and impartial clinical judgement” in accordance with paragraph 3.2 of the 2009 contract. The arrangements in place were simply for medication to be sourced from the medication cupboard in the custody suite, where available. If the medication was not held in the custody suite, then it would be obtained from a pharmacy.

[578]The use of the NSPIS system for recording information enabled information to be recorded which needed to be available for the purposes of managing the detention of a detainee and / or which needed to be recorded for evidential purposes. In the case of FMEs, recording information on NSPIS was in addition to any confidential clinical notes taken by FMEs for which they remained responsible. The need to record or make a report in relation to work undertaken is one which arises in many different areas of work, regardless of the status of those undertaking work.

[579]In evidence, it was suggested that control was exhibited by a Custody Sergeant’s ability (exercised very rarely in particular circumstances) to overrule FME’s advice about fitness of a detainee to be interviewed. The Respondent suggested that this was not an example of control in that there was no suggestion of the FME being required to change the advice given. The evidence amounted to no more than that of a Custody Sergeant doing his or her job of considering the advice and making a decision.

[580]Paragraph 42 of the Grounds of Claim relied upon the Claimants being required to undertake at least 20 hours of forensically relevant CPD per year, as well as being required to procure and provide certification in respect of safeguarding, certification equality and diversity, and Immediate Life Support (ILS), without which they could be prevented from working.

[581]It was accepted in evidence that FMEs were required to book and fund CPD training themselves. The Respondent suggested that this was indicative of the Respondent setting minimum standards of FMEs consistent with the fact that it was permitting access to detainees, in respect of whom it had a duty of care. Again, the fact that there may be an obvious need or justification for a measure does not stop it being a measure of control but may cause its relevance to be limited, given that such a requirement would not be unusual, whatever the employment status of the individual providing care to detainees.

[582]The 2009 contract also imposed requirements in respect of confidentiality and made FMEs subject to the Official Secrets Act 1989. Again, the Respondent made the point that the need for such provisions really reflected the nature of the work and the potential access of FMEs to sensitive and confidential information. Similarly, the need for security vetting and the issuing of an identity pass to facilitate entry to Police buildings and custody suites was a feature of the secure nature of the facilities. The better point was that such requirements, or a similar such regime, applied to all individuals in relation to access to buildings and confidential information, including independent, self-employed contractors.

[583]FMEs were not subject to disciplinary procedures or potential disciplinary sanctions as they were not employees or workers. Rather, there was a Disputes Procedure in place for dealing with complaints about FMEs. This was largely operated as a paper exercise in which FMEs were given the opportunity to provide any comments, if they so wished. Such a process can be contrasted with the extensive requirements which need to be met as part of any disciplinary process applicable to employees or workers. Clearly, a potential outcome of the dispute process might have been that the Respondent decided not to offer further shifts to an FME (for a period or otherwise) but this was different from a disciplinary sanction given that the Respondent was not contractually obliged to offer any shifts anyway.

[584]In conclusion, as to control, the realities of the Claimants’ work must be taken in the round to determine whether, as a whole, their work had the requisite integration and control of an employment relationship. The Tribunal considers that the limited extent of any control of the FMEs did not amount to a sufficient framework of control so as to be commensurate with an overarching employment contract. Other factors (1) Tax and National Insurance

[585]There was no doubt from the express terms of the 2009 contract that it was the FMEs who were responsible for the payment of income tax and National Insurance contributions; and income tax and National Insurance was payable on the basis of their status as self-employed contractors.

[586]Had the FMEs been treated as being employees, obviously income tax and National Insurance would then have been deducted at source and payable by the Respondent to HMRC prior to payments – which would have been of salary, not fees - being made to the FMEs.

[587]The lead Claimants were aware throughout that no deductions were being made by the Respondent from their fees in respect of income tax and National Insurance, as would have been the case had they been employees. Further, none of the lead Claimants were declaring gross fees received from the Respondent to HMRC and paying tax and National Insurance on such payments. Expenses were deducted first and tax and National Insurance only paid on a profit figure. Nor were the lead Claimants submitting returns to HMRC on the basis that they were employed by the Respondent, and that the payments amounted to employment income / salary.

[588]The evidence of each of the lead Claimants was that their tax returns, reflected their considered and honest view as to their status. Thus, the representations the Claimants made to HMRC were consistent with the position advocated on their behalf that they were employees.

[589]However, the significance placed on the fact that the Claimants were responsible for their own tax has to be tempered by recognising that the effect of Uber is that the protection given to workers and employees would be entirely undone if employers were able to circumvent such provisions by not making PAYE deductions in respect of tax and National Insurance and engaging workers on a self-employed basis. (2) Financial risk

[590]The Respondent also submitted that another significant factor, was the fact that FMEs carried an element of risk in relation to their work as FMEs, in a way that a worker or employee would not.

[591]In fact, the risks were relatively slim. However, it is correct to say that FMEs were not guaranteed to make a profit. There was the possibility that expenses might exceed income for the FME work. Various costs had to be incurred by FMEs, some of which were upfront costs. Training had to be paid for by FMEs. The cost of indemnity insurance had to be incurred. There was the small risk that an FME might not end up doing insufficient shifts to cover the costs involved, in which case a loss would be made, which was the position of Dr Green in relation to two separate years. However, it was a situation which was only likely to arise if an FME worked relatively few shifts and justified deducting tax allowable business expenses to an extent which exceeded the fees received.

[592]A more obvious area of risk was that, for FMEs, being ill was at their own risk in the sense that, if they were, they would not be paid.

[593]There was also the possibility of FMEs incurring personal legal liability arising out of their actions, although there were no practical examples of this. Thus paragraph 4.2 of the 2009 contract required FMEs to be insured against any liability they might incur as a result of provision of services or the performance of or failure to provide any services. (3) Other factors inconsistent with employment

[594]Various other aspects of the relationship between FMEs and the Respondent were inconsistent with the relationship being one of employment, albeit, in relation to some of these matters, this reflected the fact that, consistent with the terms of the contract between FMEs and the Respondent, the arrangements put in place by the Respondent reflected the stated self-employed status of FME’s.

[595]Thus, in addition to there being no disciplinary procedure in place, other policies and procedures which would have been expected to be in place in respect of an employment relationship were not in place.

[596]The work was not pensionable there were no arrangements in place to enrol FMEs in a workplace pension scheme .

[597]The extent of any arrangements in place in respect of sickness or holidays reflected the fact that any such absences were unpaid and essentially a matter for the FME. In so far as the Respondent was informed of absences, it was little more than a matter of courtesy. In relation to sickness, it was essentially an issue of notifying the Respondent in the event that sickness prevented an FME from working a shift which had been accepted. Conclusion as to issue of employment status

[598]On the basis of the analysis set out above, the Tribunal has concluded that the contractual provisions by which it had been agreed between the Respondent and each FME that the FME concerned was contracting on a self-employed basis were consistent with the reality of the situation, as it applied to the overarching contract.

[599]The lead Claimants had intended to enter into that agreement on a selfemployed basis. This was consistent with the arrangements which they put in place for providing their services under the contract albeit this varied from FME to FME so that some will simply have been invoicing the Respondent directly whilst others did so through some kind of third-party entity. Tax returns were completed on the basis that the pages in respect of selfemployment applied or on the basis of the income received deriving from the corporate vehicle to which the fees were being paid. The Tribunal recognises that an individual being paid on a self-employed basis may not be in a straightforward position in terms of declaring such income as income from employment, even if that is the reality of the situation, particularly since they may not have a full understanding of the position, but the lead Claimants in this case were clear in their evidence that they completed their tax returns on a basis which they generally believed to be the case, namely that they were not employees of the Respondent and the fees for work undertaken for the Respondent did not amount to employment income.

[600]Both the contractual provisions and the operational arrangements in place on the ground were indicative of the relationship between the Respondent and FMEs being highly organised. This reflected the fact that the functions which were being fulfilled involved a significant level of responsibility on the part of both the Respondent and FMEs. However, stripped of the detail of these arrangements, there was an absence of mutuality of obligation outside any agreement in respect of undertaking each shift. It was open to the Respondent not to offer an FME any work, even though it was exceptionally rare for this to happen. An FME was free to decline any shift to which he or she was assigned. Even where a shift was accepted, the reality of the situation was that there was very little stopping an FME cancelling it even at short notice. Outside of any shift, whilst the Respondent had in place arrangements for managing its relationship with FMEs, these were not arrangements which provided it with a meaningful level of control which would have been consistent with an employment relationship.

[601]Stepping back from the individual components of the test for employment, as discussed above, and considering the overall context of the relationship, taken as a whole, the relationship over the course of the overarching contract was not consistent with a contract of employment.

[602]The Tribunal recognises that the position was rather less clear as to the status of an FME in respect of any individual contract which could be said to have arisen for each shift worked by an FME. By the process of FMEs offering availability, then being assigned to a shift and not cancelling the shift in accordance with the arrangements for doing so, the position was reached where the FME concerned had agreed personally to undertake the work of a duty shift and would be entitled to be paid by the Respondent for that work. Mutuality of obligation had arisen in relation to that individual agreement. Clearly, the Respondent exercised some element of control during a shift in that the 2009 contract set out the duties to be performed by an FME and this was supplemented by standard operating procedures.

[603]However, the fact remains that significant other elements of the relationship were inconsistent with the relationship being one of employment, even during a shift. For example, FMEs were being paid for the shift on a gross basis and were expected to account for their own tax and National Insurance. No disciplinary process applied to them. Nor did other employment policies and procedures. If they were sick, they received no pay.

[604]The issue as to whether an FME was an employee on the basis of each assignment or shift giving rise to an individual contract, is also potentially informed by the comments at paragraph 23 of Windle (see above) to the effect that the absence of mutuality of obligation outside the period of actual work may influence, or shed light on, the character of the relationship within it on the basis that where a person supplying services is only doing so on an assignment-by-assignment basis, that may tend to indicate a degree of independence, or lack of subordination, in the relationship while at work which is incompatible with employee status. Windle made it clear that “it will not always do so” and its “relevance will depend on the particular facts of the case”.

[605]In addition to the facts of the case, as already identified, the categorisation of the relationship by the parties is also a potentially relevant consideration. Thus, where, as here, the parties were clear as to the relationship that they genuinely intended to create, as set out in the contracts and other documentation, that will be a relevant circumstance for the Tribunal to take into account, especially where there is doubt as to the outcome. Thus, in Ter-Berg (see above), HHJ Auerbach reiterated the proposition derived from Massey v Crown Life Insurance Company

[1978] IRLR 31

, and Stringfellow Restaurants Ltd v Quashie

[2012] EWCA Civ 1735

, that "it is legitimate for a court to have regard to the way in which the parties have chosen to categorise the relationship, and in a case where the position is uncertain, it can be decisive".

[606]As such, having performed the balancing exercise and addressed “the cumulative effect of the totality of the provisions of the contract and all the circumstances of the relationship created by it”, and having viewed “in the round, the relationship between the parties recorded in the agreement in the setting of the surrounding circumstances”, for the purposes of deciding whether the individual assignments amounted to contracts of employment, I was not satisfied that the individual assignments amounted to contracts of employment. Whilst any such contract might be capable of satisfying the requirements in respect of mutuality of obligation and control, other aspects of the relationship as discussed above, were inconsistent with the existence of a contract of employment, as was the wording of the contract and the evidence as to the intention of the parties.

[607]As such, I concluded that, whether viewed in terms of any overarching contract or in terms of any individual contracts on an assignment-byassignment basis, the FMEs were not employees. Worker status

[608]To recap, in order to qualify as a worker, three conditions must be satisfied,(1) The FME must have worked under “any other contract” not being a contract of employment between the FME (personally) and the Respondent.

(2) The contract must be one under which the FME undertook to perform personally any work or services for the Respondent.

(3) The status of the Respondent, by virtue of the contract, must not have been that of a client or customer of any profession or business undertaking carried on by be a client or customer of a profession or business carried on by the FME. (1) Contract

[609]The Respondent’s position on the issue as to whether a contract existed between the FME and the Respondent was that there will not have been such a contract where the FME provided services through a limited company whether on the basis that the contract was actually with the limited company or other corporate vehicle as the undisclosed principal and / or on the basis that he FME was employed by the third party.

[610]I have already found, for the reasons previously set out above, that there was an overarching contract between each FME and the Respondent. There were also individual contracts which arose when shifts were offered and accepted. (2) Personal performance

[611]The second requirement of the test for worker status is that the contract concerned is one “whereby the individual undertakes to do or perform personally any work or services for another party”.

[612]The Respondent’s position is that the 2009 contract, if viewed as an overarching or umbrella contract, did not constitute a worker contract. This was because the terms of the contract involved no mutuality of obligation. It was not a contract that required the FME to do any work.

[613]Alternatively, the Respondent’s position was that, even if the Tribunal concluded that there was an obligation to do work at some point after an individual shift was offered by an FME and assigned by the Respondent, any such contract was not one by which the individual FME was undertaking to do or perform personally any work or services for another party.

[614]The Claimant’s position was that, in applying the statutory test for establishing “worker” status under section 230(3)(b) of the Employment Rights Act 1996, the Tribunal was required to assess the true nature of the agreement between the parties, without excessive focus on wording that might be designed to avoid that status being established and having regard to its purpose (see Sejpal).

[615]The Tribunal accepted that, as far as the 2009 contract itself was concerned, the contract offered no guarantee of work in that it would have been perfectly contractually possible for the Respondent to have entered into the contract, but in fact offer no work or, more materially, for any FME not to accept any work offered) with the result that there was never an obligation on an FME to undertake any work.

[616]Moreover, the Tribunal has already found, based on the reasoning discussed in relation to employment status, that the contract was consistent with the reality of the situation. The arrangement in respect of assigning shifts to FMEs was such that it was only at the point of assignment, when the Respondent had accepted the offer of an FME to undertake a shift, that there was an agreement whereby an individual FME was arguably undertaking to do or perform personally any work or services for the Respondent. Moreover, at this point in time, any such undertaking was subject to the arrangements by which the FME could cancel the booking, which included the fettered right to provide a replacement (who had to be another FME). It is arguable that the true position was that the FME was not committed to undertaking the shift until he or she attended for it. Late cancellations without a replacement being identified by the FME would invariably result in the Respondent identifying a replacement.

[617]However, the point is that it was only in relation to individual shifts, once accepted, and subject to the arrangements for cancelling attendance on a shift, that it could be said that the FME had undertaken to do or perform personally any work.

[618]Thus, viewed in these terms, each time an FME accepted a shift, the FME was agreeing to undertake a shift personally (and the Respondent was agreeing to pay the FME a fee). The effect of such an agreement in respect of an individual shift together with the obligations contained in the contract signed by the FME setting out how the FME was to carry out his or her duties on shift, was that the FME was agreeing to provide his or her services personally.

[619]As such, the Tribunal has concluded that the overarching contract under which the lead claimants were working, namely the 2009 contract, did not give rise to worker status, as there was no requirement under their contract for an FME to perform personally any work or services for the Respondent, but there was an agreement in respect of each shift by which the FME undertook to perform personally any work or services for the Respondent. (3) Client or customer of a profession or business

[620]Was the Respondent, a client or customer of a profession or business carried on by the lead Claimant?

[621]With the exception of Dr Fairhead, for whom income from FME work for the Respondent seems to have been her only source of income, the Respondent contended that the other lead Claimants were in the position of making declarations to HMRC which amounted to treating fees which they received from the Respondent and other sources on the basis that they were running businesses, of various sorts, on their own account and were entitled to treat fees paid by the Respondent on that basis. The Respondent suggests that this effectively amounted to these Claimants operating businesses on their own account, albeit through various corporate vehicles.

[622]Dr Green was declaring his fees as partnership earnings for Green and McLachlan, together with the fees from “other fee-paying exercises” that he was undertaking. Dr Green was taking his share of partnership earnings on a 60:40 basis irrespective of the proportion of the partnership’s turnover attributable to his work, whether generally or specifically for the Respondent.

[623]For all or part of their FME engagement with the Respondent, Dr PayneJames, Dr Capper and Dr Forkuo (and, most likely, Dr Sarkar), were being paid a small employment salary by a limited company of which they were a director (Payne-James Limited, CSC Limited, P.F. Forensics Limited and U Sarkar Limited) in respect of the work that they were undertaking with the Respondent. Otherwise, the remainder of their fee income from the Respondent was effectively distributed as dividends, with this distribution being in accordance with their respective shareholdings and subject to decisions made as directors as to the level of dividends to declare. These arrangements enabled expenses effectively to be deducted as business expenses, ranging from travel costs to the costs of third-party assistance / staff to depreciation costs.

[624]In relation to Dr Sarkar, after April 2013 he had started to use partnerships (LLPs), initially UU Sarkar LLP and then UUU LLP, as the vehicles through which to declare the fees for his work as an FME with the Respondent, with the members of the LLP including another limited company of which Dr Sarkar was a Director.

[625]Thus, in the HMRC documents which were disclosed, the Claimants represented in relation to their fees from the Respondent, that these were not earnings from employment but payments received on a self-employed basis (Dr Fairhead), or as partnership earnings (Dr Green), earnings through an LLP (Dr Sarkar) or earnings through limited companies (including as employees of those limited companies) (Dr Sarkar, Dr PayneJames, Dr Capper and Dr Forkuo). The tax and accounting evidence also demonstrated the presence of other sources of fee income going through those businesses, most notably (but not exclusively) for Dr Payne-James.

[626]In addition, there was no material restriction on other work FMEs could do. Save for positions of Coroner / Deputy Coroner and Justice of the Peace in a Metropolitan Police area (where the reason for the prohibition was so plainly based in ethical considerations that it says nothing about the question of status), the lead Claimants were contractually entitled to take up any employment or engagement without the consent of, or even an obligation to inform, the Respondent. FMEs were also able to work in a variety of other fields within the medical profession.

[627]As such, the Respondent’s case, disputed on behalf of the Claimants, was that the evidence showed that the lead Claimants were undertaking the FME work for the Respondent as part of their profession as doctors and / or as part of a business or undertaking carried on by the lead Claimants, with the status of the Respondent being that of a client or customer of the lead Claimants (which was the way in which Dr Payne-James described the work for the Respondent on his website).

[628]The lead Claimants’ case is that they were neither clients nor customers of the Respondent. They were highly integrated into the Respondent’s working arrangements and were an essential part of their operation.

[629]The guidance given by Langstaff J in Cotswold Developments (see above) suggested that the following considerations may demonstrate on which side of the independent contractor / worker line a self-employed individual falls: did the Claimant actively market his or her services as an independent person to the world in general, or was he or she recruited by the principal to work for that principal as an integral part of its operations? As Elias J. held in James v Redcats (see above), it is the degree of integration which is significant.

[630]One of the difficulties in determining this issue was that the evidence varied so much across the spectrum of lead Claimants. Dr Payne-James had a social media profile and website presence which highlighted the areas of work in which he was active and presumably helped in generating more of the same type of work. Clearly, this was rather different from the position in respect of Dr Fairhead and those other FMEs who were working largely or exclusively for the Respondent.

[631]In any event, one possible answer was that it could be said that an individual was engaged in business on his or her own account in relation to some but not all of his or her remunerative activities. For example, and for the sake of argument, it might be said that Dr Payne James was marketing his services in various respects, but not particularly as an FME. Many individuals may be in the position of having a job or occupation to fall back on as a steady source of income, whilst they might be conducting business on their own account in relation to various other activities when not undertaking that job or occupation. Thus, it was possible that Dr PayneJames might be both a worker in relation to his work for the Respondent and in business on his own account in relation to various other roles that he undertook. In this regard, it might be arguable that he was marketing his services to the world at large, but not in relation to his role as an FME which was separate from his other roles.

[632]There was relatively little evidence regarding the recruitment of FMEs although there was some evidence of FMEs having had to interview for the role. However, there was no real evidence before the Tribunal of FMEs having marketed themselves to the Respondent.

[633]In Cotswold Developments (see above) it had been suggested that an element which might be a significant identifier was whether an individual was recruited as an integral part of Respondent’s operations. I was satisfied that FMEs were an integral part of the Respondent’s operations, having regard to the vital importance of their work and the detailed structure and organisation that was in place for that work to be undertaken, together with the regularity of the work being provided by FMEs.

[634]Whilst the mechanism by which FMEs were paid (by way of fees for which they invoiced, whether individually or through some kind of corporate vehicle) might be regarded as a marker of independent contractor status, the setting of those fees was a different matter. For an independent contractor, in business on his or her own account, the starting point would usually be a scale of fees which he or she proposes, which might then be the subject of negotiation. Here, by contrast, the FMEs seemed, in practice, to have had no real control over, or input into, the level of remuneration: fees were fixed and non-negotiable. Whilst there was provision for the level of fees to be reviewed, in practice this did not really happen. In other words, these were paid at the level set by the Respondent rather than on the basis of an amount charged by the FME.

[635]Other relevant factors which suggested a degree of integration included using equipment supplied by the Respondent (although most FMEs had their own equipment as well), being asked to assist with training other FMEs, receiving blogs and newspapers from the Respondent in relation to their work and having police e-mail.

[636]Standing back and looking at the overall picture, when I have regard to the factors I have identified above which, cumulatively, suggest a significant degree of integration into the operation and the absence of any negotiation in respect of pay, I am satisfied that the Respondent’s status was not that of the lead Claimants’ clients or customers. I have concluded that FMEs were sufficiently integrated into the Respondent’s operations, when they were undertaking individual shifts, so that they were, in the language of Elias J in James v Redcats (see above) “semi-detached” rather than “detached”, as an independent contractor would be.

[637]On the basis of the reasoning set out above, I have concluded that the Respondent was not the client or customer of a profession or business carried on by lead Claimants. Conclusion as to Worker status

[638]Whilst the overarching contract itself did not give rise to worker status that would have applied to the periods between shifts, the lead Claimants were within the definition of a “worker” under section 230(3)(b) of the Employment Rights Act 1996 in relation to each individual shift, For these purposes, the FMEs were workers in that they entered into (and worked under) a contract whereby they undertook to perform services personally for the Respondent and the Respondent was not a client or customer of a business or professional undertaking on the part of the FME concerned.

Outcome

[639]It follows that, at all material times, the Claimants were not employed by the Respondent under a contract of employment so as to be employees within the meaning of ERA 1996 section 230(1).

[640]At all material times, whilst the overarching Contract for Services did not give rise to worker status that would have applied to the periods between shifts, the lead Claimants were within the definition of a “worker” under section 230(3)(b) of the Employment Rights Act 1996 during the course of each individual shift which was worked by them.

[641]Given the effect of the Order made by the Tribunal as to lead cases, the parties in the related cases (namely both the Respondent and the other nonlead Claimants) have 28 days in which to make an application in writing for an Order that the decision does not apply, on the basis of a material distinction between their case and that of the lead Claimants, and is not binding on the parties to that related case (see rule 37(3) of the ET Rules 2024). Approved by