Mr M Cope v Ramsay Health Care UK Operations Ltd: 2407426/2024
EMPLOYMENT TRIBUNALS
Case No 2407426/2024
Between
Mr M CopeClaimantRamsay Health Care UK Operations LtdRespondent
Before
Employment Judge EeleyIn person for claimantMr S Cheetham KC for respondentDate 16 December 2025
JUDGMENT
[1]The claimant was not an employee of the respondent (within the meaning of section 230 Employment Rights Act 1996) at the relevant time. The complaints of unfair dismissal and breach of contract are therefore dismissed because the Tribunal does not have jurisdiction to determine them.[2]The claimant’s grievance of 27 June 2024 was not a qualifying disclosure within the meaning of section 43B of the Employment Rights Act 1996. Consequently, the complaints of protected disclosure detriment and/or dismissal are dismissed.[3]As a result of the aforesaid, all the claimant’s claims in these proceedings are dismissed. Approved by: JUDGMENT having been sent to the parties on 17 February 2026 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following reasons are provided:
REASONS
[1]This case was listed for a preliminary hearing to determine the issues set out in Employment Judge Butler’s case management order from the preliminary hearing on 18 July 2025. The issues were:(i) Was the claimant’s grievance of 27 June 2024 a Qualifying Disclosure within the terms of s.43B of the Employment Rights Act 1996?(ii) Was the claimant an employee of the respondent, pursuant to s.230 of the Employment Rights Act 1996? The employment status issue is relevant to the claims of unfair dismissal and breach of contract. If the claimant was not an employee, then the Tribunal does not have jurisdiction to hear his unfair dismissal claim or his breach of contract claim. The claimant has also presented a whistleblowing/protected disclosure claim. Consequently, the Tribunal needs to be satisfied that the claimant made a ‘qualifying disclosure’ within the meaning of the Employment Rights Act 1996 in order for that part of his claim to proceed.[2]In order to decide the issues in this case I had regard to the written and oral evidence of the claimant and the respondent’s witness Ms Sabeen Akhtar (currently the respondent’s Group Medical Director.) I also had regard to an agreed hearing bundle consisting of 1,448 pages and a supplemental bundle consisting of 149 pages. I read those pages to which I was referred by the parties. I also received written and oral closing submissions on behalf of both parties. The respondent provided copies of the relevant case law relied upon to both the Tribunal and the claimant.[3]As set out in the judgment, I decided that the claimant was not an employee of the respondent within the meaning of section 230 of the Employment Rights Act. As a consequence, the Tribunal does not have jurisdiction to hear the breach of contract claim or the unfair dismissal claim. Further, I concluded that the disclosure relied upon does not satisfy the legislative requirements to be considered a qualifying disclosure. There is, therefore, no protected disclosure on which to base the protected disclosure/whistleblowing part of the claim. As a result of this, none of the claimant’s claims can proceed and the claimant’s claims must, therefore, be dismissed.
Findings of Fact
[4]The respondent is a large provider of independent hospital services in England. It provides a range of services including diagnostics, day surgery procedures, routine and complex surgery, and physiotherapy. The services are provided to both private and self-insured patients and also some patients who are referred to the respondent by the NHS. It operates a network of thirty-four private hospitals across England and currently employs in the region of six thousand staff.[5]The Care Quality Commission (“the CQC”) is the independent care regulator for England. All hospitals in the UK (whether private or NHS) come under the aegis of the CQC. I am satisfied that hospitals (whether they be public or private hospitals) are heavily regulated environments. It is important to ensure that patients are safe and that the care provided is of sufficient quality.[6]The claimant is a Consultant Orthopaedic Surgeon with a lower limb speciality, especially conditions relating to the hips and knees. He is evidently a highly skilled professional. This is a type of work where any putative employer is likely to have little or no direction or control over how the putative employee carries out the work, for example, when they are engaged in performing surgery or clinical procedures. This is the epitome of a professional role.[7]I heard evidence that the vast majority of the consultants engaged by the respondent are not engaged as employees. I have no reason to disbelieve the respondent on this point. Only 6 out of the 3500 consultants are considered to be employees. I am told that those six employees were engaged as employees for legal reasons (such as following TUPE transfers) or for commercial reasons necessitating the recruitment of individual employees for specific posts (rather than engagement via a different legal arrangement.)[8]The respondent provides the hospitals (and associated facilities) and the other staff which are necessary in order for the claimant (or any other surgeon) to perform surgery and treat patients. The respondent has control over its hospitals and the clinical environment to the extent required to ensure that regulatory requirements are met and to ensure safe and adequate levels of clinical governance. The respondent needs to exert clinical governance over the services provided at its sites. Consequently, when a consultant applies for practising privileges with the respondent’s organisation, the consultant goes through what amounts to an accreditation process in order to obtain those practising privileges.[9]The claimant has stated (in his further particulars) that in October 2024 the respondent advertised the same job that the claimant performed, with the same role and responsibilities, but engaging the consultant as an employee under a contract of employment. I have heard evidence that a vacancy was advertised for an Orthopaedic Surgeon or a Consultant for Lower Limb Surgery at the respondent’s Winfield Hospital (Gloucester) but that it was not filled and the respondent decided not to progress the recruitment exercise any further. The respondent says that it is very rare that it employs doctors except, occasionally, Anaesthetists. I am told (and accept) that there are a few employed surgeons. They have either transferred to the respondent under those terms and conditions via TUPE or, exceptionally, they have been recruited for particular projects. The vast majority of the consultants practice under “Practising Privileges.” Practising Privileges[10]The vast majority of consultants are engaged using “Practising Privileges”. Those Practising Privileges authorise the consultants to attend the respondent’s premises and to provide medical and surgical services at one or more of the respondent’s hospitals. They are, in essence, the gateway to being able to practise out of the respondent’s hospitals. The process to obtain Practising Privileges apparently involves an interview with the Hospital Director, a check of all relevant documents and references, and a ‘walkaround’ with the hospital team. Each year there is a check that the consultant’s mandatory training is up to date, that their appraisal is satisfactory, and that medical indemnity insurance is in place. Every few years there is also a check on the scope of the consultant’s practice.[11]The respondent introduced its own Practising Privileges Agreement in 2009. A consultant chooses which hospitals they want to work from, and they are only granted Practising Privileges for those particular hospitals. They would need to apply separately to other hospitals if they wished to practise at those additional sites. A process would be undertaken in order to extend the consultant’s Practising Privileges to the new environment. Indeed, Mr Cope’s 2023 appraisal refers to him considering applying for Practising Privileges at other independent providers. Consultants who hold practising privileges with the respondent are free to practise elsewhere and it is common for them to remain employed in the NHS and also to provide their services through other independent providers (as perhaps indicated by the claimant’s appraisal, referred to above.) The Facility Rules, policies and procedures[12]I considered the respondent’s Facility Rules and associated policies and procedures. This is the set of rules and associated policies and procedures under which consultants (and other healthcare providers) operate when they work at one of the respondent’s hospitals using their Practising Privileges. The consultants engaged under Practising Privileges agree to provide their independent medical services in line with the Facility Rules (and associated policies and procedures.) The Facility Rules apply to all Accredited Healthcare Practitioners (“AHPs”) who have been granted Practising Privileges to admit and treat patients at the respondent’s facilities.[13]The respondent says that the Facility Rules set out a minimum level of standards and requirements necessary to achieve safe outcomes for the healthcare provider, patients, and the respondent. They clarify the relationship between the individual and the respondent and identify the obligations of both parties. Non-compliance with the Facility Rules can result in suspension or termination of the AHP’s Practising Privileges.[14]The principle applied by the respondent is that of “consultant-led care.” The consultant who admits the patient remains responsible for their care throughout their stay.[15]If the Hospital Director is satisfied that there is a need for a consultant in a particular specialism at the hospital, the consultant will be asked to submit the necessary documentation (listed in Schedule 2 of the Facility Rules) to show that they are adequately qualified, indemnified and experienced to provide the services.[16]Each of the respondent’s hospitals must be registered with the Care Quality Commission to provide regulated healthcare activities. As part of that registration the respondent needs to ensure that all of its devices, policies and protocols are adequate and up to date and that consultants follow the latest clinical guidance from the GMC, NHS and the National Institute for Health and Care Excellence (“NICE”) etc. This means that there are some governance arrangements that the respondent puts in place for all consultants with Practising Privileges.[17]Consultants agree to comply with the respondent’s Facility Rules and various policies applicable to consultants when they apply for Practising Privileges at the respondent’s hospitals. Those policies include the Confidentiality Policy, the Information Security Policy, the Data Protection Policy, the Safe Surgery and Invasive Procedures policy, the Medical Records Scanning and Importing into the Electronic Patient Record policy, the Consent to Treatment for Competent Adults and Children/Young People policy, and the Chaperoning Policy. The claimant[18]What follows is a brief chronology in relation to Mr Cope, the claimant in this case. Mr Cope was a practising Consultant Orthopaedic Surgeon with a specialism in lower limb arthroplasty (hip and knee joint repair and replacement.) He successfully applied to Capio Healthcare UK (as it then was) to be granted Practising Privileges to enable him to provide independent medical services at Renacres Hospital, near Ormskirk, in 2007. He signed an agreement for Practising Privileges with that predecessor organisation (Capio Healthcare) and he started to provide services to patients at Renacres Hospital on 3 March 2008.[19]The respondent introduced its own Facility Rules in 2013 and, like other consultants, the claimant operated under those rules following their introduction. Those 2013 rules were superseded by the 2019 Facility Rules and the copy in the bundle includes a version of the document which was signed by the claimant in 2024.[20]The claimant was substantively employed as a consultant at Southport and Ormskirk Hospital NHS Trust at the time that he originally applied for Practising Privileges with Capio Healthcare. Renacres would have been the respondent’s hospital which was closest to the Southport and Ormskirk NHS Trust and to the claimant’s home (at that time) in Lymm.[21]The claimant continued in his NHS employment until February 2017 (a period of nine years.) He subsequently relinquished that employment with the NHS and focused on his private practice instead. GMC and regulatory requirements[22]GMC and regulatory requirements apply across the board. Consultants must be on the GMC specialist register. All licensed doctors (irrespective of how and where they work) are required to comply with the GMC’s Good Medical Practice guide and other professional standards and guidance, including the requirements for revalidation. Doctors must demonstrate regularly that they are keeping their skills and knowledge up to date. This process is called “revalidation.” Every licensed doctor must revalidate to show that they are fit to practice and to maintain their license to work in the UK. Every year doctors review and discuss their work with a specially trained doctor and they agree a plan as to how they can improve and build on what they do well during the next year. This is known as “appraisal” and is a key part of the revalidation process for GMC purposes.[23]Delivery of revalidation is actually carried out away from the GMC and is delegated either to NHS Trusts or the independent healthcare providers that the doctors work with. This is a statutory framework to ensure patient safety and appropriate standards of clinical care.[24]Under the Medical Profession (Responsible Officers) Regulations 2010 each doctor has a “Designated Body” which has the duty to appoint or nominate a “Responsible Officer” who is responsible for ensuring that there are effective systems and processes in place with regard to appraisal and also investigating concerns about medical practitioners’ fitness to practise. For most doctors that Designated Body has to be the organisation in which they undertake the highest proportion of their practice. Consequently, the Responsible Officer is a senior doctor within that organisation.[25]When the claimant was substantively employed by the NHS, the NHS Trust was the Designated Body for the claimant. After the claimant left NHS employment in 2017, the respondent became his Designated Body as it was the organisation where Practising Privileges were exercised for the majority of the claimant’s clinical practice. That meant that the respondent’s Responsible Officer became responsible for the claimant and his revalidation processes. However, as an independent consultant, the claimant was required to pay a fee for his appraisal. The appraisal was carried out by appraisers who were engaged on a consultancy basis by the respondent (i.e. they were not employed directly by the respondent.) In fact, they were not necessarily consultants who practised with the respondent, they could be consultants who practised medicine elsewhere. This could be seen from an invoice that the respondent sent to the claimant in July 2021. This differs from the position for doctors who are engaged under a contract of employment with the respondent. In those cases, the doctor does not pay a fee out of their own pocket for their appraisal. Rather, the respondent pays for the appraisal service on their behalf.[26]As previously stated, it is a GMC requirement that doctors keep their knowledge and skills up to date and regularly take regular part in training and/or continuing professional development (“CPD”). Doctors need to bring a summary of their CPD activities to their annual appraisal in order to show that they have met the requirements for revalidation. Periodic mandatory training is required for all consultants (wherever they work) in order to ensure that they meet those GMC requirements in order to practise. This also forms part of the CQC’s requirements that independent providers and NHS Trusts must fulfil. The mandatory training can be provided by independent providers or consultants can undertake it at their NHS Trust. After 2017, as the claimant no longer worked in the NHS, his mandatory training was undertaken through the respondent. Arrangements for categories of patients using the respondent’s hospitals[27]There were different arrangements in place for different types of patients using the respondent’s hospitals. There were three broad categories of patients being treated at the respondent’s premises: NHS funded; private medical insurance funded; and self-funded.[28]NHS patients in England have the right to choose where they have their NHS treatment. The respondent contracted with NHS commissioners and providers so that patients had the option to attend the respondent’s hospitals for their treatment, even though it was to be funded by the NHS.[29]Insurers providing private medical insurance (“PMI”) (such as BUPA) also contracted with the respondent and other care providers (e.g. Spire) so that their individual members could use their PMI to fund their treatment at the respondent’s hospital. Once the PMI provider had confirmed coverage for the patient’s treatment, then the patient (or their GP) could locate a consultant that they wished to see and approach them directly or they could contact the local independent hospital (such as the Renacres Hospital) in order to make an appointment with an appropriate consultant practising at that hospital.[30]Finally, self-funding patients wished to access treatment at the respondent’s facilities, and they paid to receive that treatment. Those patients might approach a particular doctor that they wish to use or they might approach the hospital in order to obtain a list of the available consultants that could be booked by the respondent.[31]Patients may approach a particular doctor that they want to use or may approach the hospital to get the list of available consultants that can be booked via the respondent. Marketing and how the parties described themselves.[32]Given the arrangements in the private sector, there was some degree of marketing. Consultants with Practising Privileges at the respondent’s hospitals routinely advertised their services in order to encourage patient referrals. Consultants engaged by the respondent also appeared on the respondent’s website and some of them had their own websites and social media pages. I was referred to the claimant’s LinkedIn page which referred to him, amongst other things, as a “self-employed surgeon” from February 2017 to November 2024 (i.e. during the period after he left his substantive employment with the NHS). It also referred to the claimant as a consultant at the respondent from 2007 to November 2024. The claimant had his own website and also advertised via LinkedIn, YouTube and Facebook as well as other websites like “Doctify” and “IWantGreatCare” during the time that he was engaged by the respondent.[33]Consultants (including Mr Cope) would deliver talks (for example, at GP Practices or Musculoskeletal services) in order to increase the number of referrals. All Consultants with Practising Privileges at the respondent appear on its website. That website explains the relationship between the respondent and its consultants from the respondent’s perspective. It states that the respondent works in partnership with consultants and that they have been engaged by the respondent to provide independent medical services at the respondent’s hospital. Practicalities[34]As expected, there were clinic and surgery arrangements. Each consultant would have a clinic list scheduled at the hospital where they offered services. During those clinics they had outpatient consultations with their patient cohort. If there were no patient referrals or patients to be reviewed, then the clinic would remain empty. The Hospital Director and Senior Leadership Team at the hospital would allocate regular clinic and theatre capacity to consultants based on that consultant’s stated availability and patient need/availability. There would be a discussion with the consultant to reach an agreement as to what was available and what the consultant could accommodate.[35]I am satisfied, based on the evidence, that consultants like the claimant were free to decide how much clinic and theatre capacity they took. The Hospital Director would offer what was available and it was the consultant’s choice whether to accept what was on offer, or not. A consultant’s list could change if patients needed to be reallocated or if there had not been many referrals. The list could be cancelled altogether if there were insufficient/no patients requiring surgery. Only patients that were suitable for the consultant’s scope of practice were booked into their clinic. The consultants listed the procedures that they could undertake when they applied for Practising Privileges. The Hospital might decline a referral if it did not have the facility or staff to undertake a procedure safely at its site, or if a specialist consultant was not available. This is part of the respondent’s oversight procedures.[36]The claimant, Mr Cope, had regular clinic and theatre capacity allocated to him. He may have been offered additional sessions which he could accept or decline, depending on his availability and preferences. Prior to the termination of his Practising Privileges in 2024, Mr Cope was allocated in the region of five theatre sessions every four weeks. He averaged 5.5 theatre sessions per month. This would average out as just over 5 theatre sessions in a rolling fourweek schedule. The claimant also had outpatient clinics. I was referred to various graphs showing the number of clinics, the times of his theatre and outpatient clinics, the number of patients seen, and the types of procedures performed etc.[37]There was no requirement for the respondent to book a minimum number of patients for each consultant. Nor was there any requirement for the respondent to pay a consultant when the consultant was not providing services to patients. During the Covid pandemic, elective activity fell to low levels and the claimant’s services reduced correspondingly during this period. The consultants themselves had the right to refuse to see or treat patients that had been referred to them. They could refer them to another healthcare provider or practitioner who could treat them. Alternatively, they could decide to re-refer them back to the NHS if they felt that the patient needed high dependency or intensive care to be provided in an acute hospital in the NHS but not offered at the respondent’s facilities. The consultant was also able to transfer a privately funded patient to another independent provider if it was considered to be in the patient’s best interests.[38]The model of care within the independent hospitals was “Consultant-led.” The consultant takes responsibility for the patient’s care and has autonomy to make clinical decisions regarding the provision of such care. I have also heard evidence about the Resident Medical Officer (the “RMO”) at each hospital and their role in supporting the care of patients when the patient’s named consultant is not at the hospital. The RMO can undertake basic tests and investigations but they are not specialists and do not make specialist clinical decisions. Any action that the RMO takes should be taken at the direction of the named consultant following a discussion between the RMO and that consultant. When the consultant admits a patient, they remain ultimately responsible for that patient and they must be contactable in order to agree care and the treatment of their patients and to be able to attend the hospital where required. Arrangements are made for the consultant’s patients to be cared for if they are not present or available and that arrangement is made primarily by the consultant rather than the respondent (see below.)[39]In terms of insurance, the consultant working pursuant to Practising Privileges is required to have their own medical indemnity cover. The claimant did hold his own cover and the respondent was not responsible for providing this or for paying for it.[40]A lot of the evidence that I heard was about matters which could be loosely described as supervision and control. Consultants were not supervised by the respondent in carrying out their skilled clinical work. They are skilled professionals. The clinical decisions that they take and the care provided for their patients are, generally, a matter for them to determine and deliver. However, there are some limitations on complete freedom of choice and autonomy on the part of the consultant when they are working within the respondent’s business. It is important to be clear about the purpose of these limitations and controls and the reasons for them in order to be able to understand what the existence of these limitations may mean for the claimant’s employee or contractor status. The limitations are generally related to the respondent ensuring its own regulatory compliance, i.e. ensuring that the respondent (and the facilities and the services it provides) are compliant with its own regulatory duties. As the facility and service provider, the respondent will exercise some control over the way its facilities are used. It is important to distinguish between control and supervision for professional purposes (i.e. how the consultant does his job and exercises his professional judgment), and control and supervision in relation to the way the services, facilities and supplies provided by the respondent can be used and operated in practice.[41]The claimant did not attend staff meetings. By this, I mean the sort of meetings that an employed team member might attend in relation to HR matters or organisational matters within the respondent as a business. This is not the same as saying that the claimant did not attend any meetings. He was part of the Medical Advisory Committee. This is an unpaid advisory role. Every respondent hospital has such a committee which advises on clinical matters aiming to improve patient safety and quality of care. Some consultants offer their time free of charge to participate in the MAC and the claimant was one such consultant. That does not indicate control or any other factor relating to employee status. Similarly, the claimant also attended Arthroplasty meetings. These were meetings in relation to clinical matters. They are the sorts of meetings that anyone providing such services using the respondent’s’ facilities would need to attend, as a clinical matter. Again, this was not an indicator of employment status.[42]I heard evidence that Mr Cope would have received communications pertinent to consultants exercising Practising Privileges at the respondent. He did not receive general company-wide communications which were reserved for employees. I am also told (and accept) that the claimant was not invited to the respondent’s internal social events (such as Christmas parties.)[43]I have no reason to disbelieve the respondent’s evidence that that consultants are not performance managed by the respondent in the same way that its employees are. The respondent does not apply the staff disciplinary procedure to consultants. If there are issues with clinical or professional practice, then the respondent may restrict, suspend or terminate the consultant’s Practising Privileges using the Facility Rules. Thus, a separate procedure is used from that which would apply to employees.[44]I considered matters of ‘cover’ and substitution. According to the Facility Rules, consultants were responsible for making arrangements for provision of suitable cover for periods of planned or unplanned absence. Cover needed to be provided by another consultant in the same speciality who also had Practising Privileges. The original consultant was required to make arrangements for another suitable consultant to be available to take emergency calls in relation to their patient in the event that the original consultant was unavailable or could not be contacted. The original consultant would nominate that person to cover for them when they were not available. The hospital would be provided with the details of the nominated cover consultant. The consultant providing cover would need to be someone that had the relevant Practising Privileges so that the respondent could be satisfied that they had undergone all the relevant checks. Otherwise, the choice and nature of the arrangement was at the discretion of the original consultant who was arranging cover for their own absences. Thus, there was a right of substitution, although it was not completely unfettered. There were some limitations on substitution which were consistent with the respondent’s own duties to provide safe levels of care and regulatory compliance on its premises. However, the respondent was not providing or arranging that cover itself. It did not, for example, arrange sick leave cover. It did not have that sort of oversight of ‘on call’ or cover rosters for the consultants. That is to be contrasted with a ‘classic’ employment relationship, where an employer will have the responsibility of providing cover in the absence of a particular employee. In this case, the responsibility for arranging cover lay with the claimant, as long as the substitute consultant was appropriately qualified and authorised to practise at the respondent’s premises. This was the result of the highly regulated nature of the hospital and healthcare sector.[45]Mr Cope would arrange reviews of his patients by other consultants, as confirmed in one of his own reports dated 30 May 2024. Alternatively, the hospital authorities might have to request support from consultants practising on site in order to ensure patient safety. This was, in effect, a safety net. The respondent should not have to step in in this way in the normal course of events if the original consultant has complied with the requirement to arrange cover for his patients. However, the requirement to ensure patient safety means that the respondent cannot ignore the absence of cover in an emergency situation and will call in the necessary cover. However, this is not the same as the respondent having a responsibility to arrange routine care and cover for the claimant’s patients when the claimant was not available. Such cover was primarily the claimant’s responsibility. Where a consultant arranged for cover of his patients by another consultant in his absence, the respondent did not pay the consultant who provided the cover. That was an agreement made between the two consultants.[46]The consultants working at the respondent’s premises could also use external support for their practice. In such circumstances the consultant would be responsible for any negligent acts or omissions by the external support worker. The consultant would have to indemnify the respondent for any losses arising from the acts or omissions of a support worker engaged or arranged by the consultant. Equipment and Materials[47]I was satisfied that consultants generally have a choice of which prostheses to use, from an approved list. If a consultant wished to use a prosthesis which was not on the list, they could apply to have it approved. This would then go through a local or central governance process to ensure, amongst other things, that it was a prosthesis of approved quality and fit for purpose. If satisfied of its suitability, the respondent would approve it for use and the consultant would be able to use the prosthesis of their choice. Thus, there were some limits to freedom of choice but this was so that the respondent could ensure that the products used and supplied to clinicians met safety and regulatory requirements and were consistent with the respondent’s agreed standards of service delivery within its hospitals. The respondent did not have complete control over this. There were limited potential limitations on a consultant’s freedom of choice. In practice, a consultant might never actually ask to use a prosthesis which was not on the pre-approved list. If they did make such a request, then the respondent did not automatically refuse. There was a process of approval which allowed the request to be considered, subject to quality controls. It is matter of degree. It was not an absolute or automatic bar.[48]There was also some degree of standardisation of equipment. The claimant referred to an ablation tool which was changed by the respondent. The tribunal does not know what would have happened if the claimant had asked to revert to his preferred original tool. The evidence rather suggests that he may have been able to go through an approval process for an “off-list” piece of equipment. More contentious was the control over the claimant’s ability to prescribe Pregabalin. It may be correct to say that he was prevented from prescribing Pregabalin. I do not know what the explanation for that was. This might suggest some control over clinical practice or there may be another explanation. However, this was only one factor in a larger factual matrix and it does not, of itself, outweigh the weight of evidence demonstrating ‘light touch’ control.[49]The respondent provided the facilities for patients to access the clinical services at its hospitals. These included consulting rooms, theatre and ward facilities, theatre equipment and nursing and other support staff. The respondent could provide a secretary to support consultants, but the consultant would pay a fee for this service. It also charged consultants a rental fee for use of its consulting rooms. Consultants needed to provide their own IT equipment for remote access. If a consultant wished to have remote access to the respondent’s systems, then they would need to use their own laptop. Consultants needed to be contactable and provided their own mobile phones. By contrast, the respondent provided laptops and mobile phones for the small number of surgeons that it employed.[50]The respondent did not provide consultants with a uniform in the same way that it might for other employed clinical staff. Consultants were, however, provided with scrubs for use when in theatre. The respondent says that this is a universal safety requirement in all hospital theatres in order to reduce infection risk. The respondent provided scrubs for the consultants as the respondent was responsible for the provision of the theatre facilities for patients. The claimant, on the other hand, suggested that he was aware of hospitals where consultants provide their own scrubs for use in theatre. I am not able to determine whether that would provide comparable levels of infection control, but I am satisfied that this respondent decided to provide scrubs to all those working in the theatre environment for infection control reasons and not because they wanted consultants to be particularly integrated into the company or presented as an employee of the company. This was not what one might refer to as a ‘branding’ issue. Pay arrangements[51]I considered payment arrangements in this case. Independent consultants (like the claimant) did not receive fees if they did not treat patients. By contrast, staff employed by the NHS would have continued to be paid salaries even in the absence of patients for them to treat. The same would be true for the few consultants that the respondent chose to employ- they too were paid irrespective of the availability of patients for them to treat.[52]Where the patient was treated by the claimant at the respondent’s hospital as part of the patient’s NHS care, the funding arrangement was that the respondent would be paid a tariff which had been negotiated between the NHS commissioning bodies and the independent provider (such as the respondent.) The respondent’s NHS subcommittee would then decide how much of that tariff amount would be passed on to the individual consultant who provided the treatment, and how much would be retained by the respondent to reflect the fact that it had provided the hospital facilities. Changes to consultant fees were essentially dictated by changes to NHS set tariffs which were set either nationally or (according to the claimant), in one sense, regionally.[53]Fees might be recovered from consultants in certain circumstances. For example, if the NHS commissioning body applied penalties to the respondent on 18-week breaches because of the fault of the consultant, or where they reduced the fees paid to the respondent due to incorrect coding by the consultants.[54]For insured patients, each PMI provider sets their own fee. Depending on the level of the patient’s cover, the patient may be liable to pay any shortfall themselves.[55]The individual consultants set their own fees for self-paying patients. Examples for the claimant were in the bundle.[56]The care and treatment that non-NHS patients received at the respondent’s hospitals would involve separate arrangements with the respondents and with the consultant. The consultant (or their secretary) would invoice the private patient or the PMI insurer for their fee and the respondent would invoice the patient/PMI insurer separately for the hospital fee. In some cases, the respondent might collect the consultant’s fee on the consultant’s behalf and then pay it forward to them. Again, examples were present in the bundle. The consultant received a monthly remittance advice generated by the respondent which showed details of the patients in the different categories who had received treatment by the consultant and the invoice amounts. Again, remittance advices were within the hearing bundle.[57]The risk in terms of the claimant’s own fees (and that of his consultant colleagues) sat directly with the consultant. Where the respondent paid PMI fees to the consultant before they had received them from the PMI provider, the Facility Rules made it clear that the consultant would be responsible for repaying such sums to the respondent if the PMI provider failed to pay the relevant amount to the respondent. If there was an excess on the PMI or if some of the consultation or treatment fee was not covered by the insurance, the patient was personally liable to the consultant for the balance. The consultant would invoice the patient and would pursue them directly for the payment.[58]If a private patient was re-admitted to the hospital for a reason which related to the original procedure, there would be no additional fee paid for any corrective procedure or care. The consultant would provide the corrective procedure and care without receiving an additional payment. On rare occasions a consultant might be asked to contribute to refunds for self-paid patients where there has been a complaint. In similar circumstances involving a consultant who was an employee, one would expect to see the consultant employee being paid for their working time rather than on a case-by-case basis. The employed consultant would not be covering the costs of corrective procedures out of their own pocket in this way.[59]The respondent charged the consultants a rental fee for use of the respondent’s consulting rooms. In the case of insured and self-paid patients, the claimant was charged for secretarial, debt collection fees and billing services. Some consultants had a limited company (or LLP) through which the respondent could pay their fees. The claimant himself had such companies: Hip FX Limited, Knee FX LLP, and Pheonix Orthopaedics Limited. Mr Cope (or his company) was responsible for paying his own tax and National Insurance contributions arising from the work that he did. In general terms, the existence of a personal services company tends to be an indicator of self-employed status rather than employee status.[60]I have also made findings about how the parties themselves described the relationship. From the 6 April 2021 the respondent was required to issue all contractors who provided their services through a personal services company with a Status Determination Statement. Contractors could dispute the status determination they received if they disagreed with it. The claimant did not dispute his SDSs. He signed annual Status Determination Statements in 2021 and 2022 which declared that he was self-employed, was providing his services through a personal service company, and that the IR35 off-payroll working rules did not apply. In his documents for the tribunal, the claimant has said that he is classified by HMRC as an employee. The claimant referred me to the online status checker tool that he used in April 2025. However, this contradicts the status statements that he signed during the currency of his working arrangements with the respondent. The quality of the output from any online status checker will depend on the quality if the information that is put into it. The inputs are based on the individual’s answers to the online questions. The accuracy and reliability of the information provided will impact upon the accuracy and reliability of the answer given by the tool. The respondent disputes the information that the claimant has given and asserts that it is not accurate. For example, contrary to the information provided by the claimant in the questionnaire, the respondent maintains that the claimant did not, in fact, have any employees reporting directly to him. Nor did he receive any corporate benefits from the respondent.[61]The claimant did not receive benefits from the respondent, such as a company pension, paid holiday or sick pay. The respondent maintains that its employed staff are in receipt of such benefits.[62]Under the applicable Facility Rules, the consultant is responsible for responding to private patient claims and complaints of negligence. The consultant must hold their own medical indemnity insurance. An NHS patient would have their claims covered by the NHS’s clinical negligence scheme.[63]Where a consultant arranges medical indemnity cover with a commercial insurer, the respondent requires that the minimum cover amount per claim should be £10million in order to provide adequate cover for the consultant’s liability to patients. At the respondent’s request Mr Cope confirmed (in November 2020) that he accepted liability to cover claims exceeding the £1 million limit of his medical insurance cover. Where legal proceedings were brought making claims of medical negligence, the claim would be pursued against the claimant as the named defendant in the case, rather than his “employer”, the respondent, relying on the concept of vicarious liability.[64]The claimant was required to register with the Information Commissioner as a Data Controller. He paid the registration fee himself. He was provided with a secure email address to provide additional security. The claimant did not use that email address, he preferred to use his own personal Hotmail email address. That is demonstrated by the documentation in the bundle. He did, however, have to use the respondent’s data sharing platform called Egress (or some other approved secure platform) although it is not clear that any dispute ever arose about that in practice. I am satisfied that the requirements in relation to data sharing methods were more a consequence of the claimant and the respondent both having legal responsibilities for data protection under the relevant legislation. They were controls for the purposes of regulatory compliance rather than an employer exercising control over an employee’s ways of working. The reality is that the claimant was not required to use the respondent’s internal email system, he just had to store and process data securely and maintain security when data was shared. The end of the relationship between the parties[65]I heard some evidence about how the relationship between the claimant and the respondent ended and include findings in relation to that here, to the extent that it is relevant to the status issue (bearing in mind that I am not looking at fairness or the reason for termination at this stage.) It appears that the claimant became something of ‘outlier’ on the National Joint Register in 2017. That national register records, monitors, analyses and reports on performance outcomes in joint replacement surgery in order to enable research analysis and improve service quality and patient outcomes. The claimant implemented his own action plan and his practice was kept under review. The claimant says that due to a time lag in data collection he had, in fact, already identified and rectified any problems before they were picked up by third parties.[66]The NHS Litigation Authority wrote to the respondent in 2020 regarding a number of claims involving the claimant. Following an external review for governance purposes, the claimant’s practice was restricted to the Renacres and Fulwood Hall Hospitals. He was restricted from undertaking joint revisions (other than for patients who had had an isolated Patello Fermoral Replacement (“PFR”) and in each all-day list he was restricted from carrying out more than four cases where he was undertaking arthroplasties. The respondent says that the restrictions were applied by the respondent in order to maintain patient safety and ensure quality of care.[67]Due to a breakdown in his relationship with the Senior Leadership Team and staff at Fulwood Hall Hospital, the claimant’s practice was restricted to Renacres Hospital only in 2021. The claimant’s practising privileges were suspended completely in May 2024, after the death of a patient who underwent a total hip replacement at Renacres Hospital under his care (in April 2024.) Following a review, Mr Cope’s Practising Privileges were then terminated in September 2024.[68]The claimant raised a grievance about his suspension in July 2024. The respondent says that the staff grievance policy applied to a wider range of personnel than just employees. Amongst others, it applied to consultants with Practising Privileges as it was considered to be in the interests of ensuring an effective healthcare setting and patient safety, for a wide range of individuals to be able to raise concerns so that they could be addressed and resolved.[69]There is also a whistleblowing policy in place at the respondent. That also applied to consultants with Practising Privileges. The purpose of that policy is to encourage individuals to report suspected wrongdoing without fear of reprisal and to provide guidance on how to raise those concerns.[70]I have then gone on to consider the facts and evidence in relation to the issue of the protected disclosure. The alleged protected disclosure is the claimant’s grievance letter which was located at page 1000 in the hearing bundle. The subject matter is said to be the grievance regarding suspension and a request for immediate reinstatement. The claimant relies on the ACAS Code of Practice for grievances. He asserts that his suspension is in violation of his rights as an employee, the quotation is: “Whilst my contract states that I am allegedly “an independent contractor and not an employee, agent or servant of the Hospital/Clinic”, I believe I am an employee, working under a contract of employment (express or implied), and that I have employment rights. At the very least, I believe I am a worker and therefore, I have the right, consistent with the rights of employees, not to be unfairly dismissed, the right not to be subjected to a detriment at work for blowing the whistle, and the right not to be subjected to any discrimination. I have set out below in brief form, some pointers as to why I believe I am an employee (or worker), which would include the right to have my grievance investigated and heard by a competent decision-making panel in accordance with the Company’s grievance procedure. I also request that the disciplinary process which appears to be premeditated is postponed, pending the outcome of the grievance. In my view, the following, among others, point to employment status as an employee as opposed to self-employment:” The claimant then proceeds to list fifteen bullet points which all refer directly and explicitly to the claimant’s own circumstances and terms and conditions. They all refer to, in effect, “I” rather than “we,” or a group of individuals.[71]The following section of the letter sets out why the claimant thinks he has been treated unfairly in relation to suspension of his services. There are criticisms of breach of procedure. All of those observations and comments can only relate to the claimant’s individual circumstances as they are all about the circumstances of his particular suspension and the respondent’s decisions and processes in relation to that. They cannot, by definition, relate to others.[72]The claimant alleges a breach of the whistleblowing procedure. He also refers to a previous allegation he made of bullying and harassment. In relation to that he says: “I feel that I am now being singled out and victimised because I raised health and safety issues (e.g., bullying and harassment, which are matters of considerable public interest). You may recall that I was humiliated in front of the theatre team at Fulwood Hall Hospital in or around January 2021 when I was forced to explain my suspension and divulge sensitive personal information about an earlier suspension, in breach of the GDPR and Data Protection Act 2018. I trust that I am not being subjected to a detriment and/or victimised for raising concerns about bullying and harassment at work. Since then, many trivial issues, which cannot be justified have been raised. I would be happy to provide a list of each incident/event, and people involved at a meeting.” In relation to the impact and concerns he continues: “Impact and Concerns This suspension, including the detrimental treatment complained of since January 2021, has caused significant distress, impacting my professional reputation and causing undue stress. Furthermore, the decision is contrary to disregard Ramsay UK’s commitment to a fair and respectful workplace, as outlined in the “Dignity at Work” policy.”[73]The claimant then set out the resolutions that he was seeking including: 1. Immediate Reinstatement: I request my immediate reinstatement to my position, as the suspension was enacted without due process and confirmation that I will not be subjected to any further detriments at work. 2. Formal Apology: An acknowledgment and apology for the premature suspension and the distress caused. 3. Comprehensive Review: A thorough and fair investigation into the incident involving patient BA, with input from a qualified Lower Limb Orthopaedic Surgeon who is trained in using the structured judgement case note review process. 4. Policy Adherence: Assurance that all future disciplinary actions will adhere strictly to Ramsay UK’s established policies and procedures. I trust that you will treat this grievance with the seriousness it deserves and take immediate steps to rectify the situation, and the matters of public interest that I have raised in this letter.[74]Those are quotations from the grievance letter. At the preliminary hearing Employment Judge Butler clarified the basis on which the claimant said he had made a disclosure which amounted to a protected disclosure. The claimant explained that it fell within section 43B(1)(b) (that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject). He explained that the legal obligation in question was “not treating the claimant as an employee.” That was the failure to comply with a legal obligation which was relied on.[75]The claimant was asked to explain how his grievance (which on the face of it concerned private interests) would satisfy the public interest aspect of the test for a qualifying disclosure. The claimant explained to Judge Butler that the status of a doctor, and them not being treated as an employee, would be of interest to the public. He then later referred to a Panaroma programme.[76]In the list of issues attached to the case management order, Employment Judge Butler made it clear that the breach of the legal obligation relied on by the claimant was “not treating the claimant as an employee.”[77]The respondent says that the claimant did not have the necessary reasonable belief that the disclosure was made in the public interest. This was explored with the claimant in cross examination. It was put to the claimant that, on its face, the letter refers only to the claimant. The flavour of the claimant’s responses to questions in cross examination was that, by necessary implication, his assertions had “knock-on effects” on other members of the workforce. So, if the respondent was not acting correctly and treating the claimant as an employee, then by implication, they were not treating other consultants as employees. He sought to broaden it out from his own case to that of the cohort of other consultants engaged by the respondent.[78]The grievance letter also states: “Non-Compliance with Whistleblower Policy: Ramsay UK’s Whistleblower Policy outlines protections and fair treatment for employees raising concerns. My suspension, without proper investigation, undermines these principles. You may recall that I previously complained about bullying and harassment at work, in particular by a nurse, namely N… D… in January and February 2021. Regrettably, nothing was done and I felt unsupported by Ramsey during a lengthy period of suspension, which did not result in any disciplinary action. I feel that I am now being singled out and victimised because I raised health and safety issues (e.g., bullying and harassment, which is are matters of considerable public interest). You may recall that I was humiliated in front of the theatre team at Fulwood Hall Hospital in or around January 2021 when I was forced to explain my suspension and divulge sensitive personal information about an earlier suspension, in breach of the GDPR and Data Protection Act 2018. I trust that I am not being subjected to a detriment and/or victimised for raising concerns about bullying and harassment at work. Since then, many trivial issues, which cannot be justified have been raised. I would be happy to provide a list of each incident/event, and people involved at a meeting.”[79]I have reviewed the notes taken at the grievance hearing. Amongst other things, they contain the following: “It is mainly about the fact that I have been suspended with no following of Ramsay policy by CR. I have not been asked to provide report or discussed the case, the first I heard about the suspension was from JW when I was verbally suspended on 30th May 2024. “ The rest of the discussion all relates to the claimant’s personal circumstances and the way he has been treated, effectively that he has been unfairly singled out. He does not assert that he is one of a cohort of consultants who are being treated in the same way.[80]Later in the grievance hearing notes, the grievance manager referred to claimant’s status as independent contractor. The claimant did not respond to this to indicate or assert that the grievance manager was wrong about this or that he is alleging that it is wrong to treat the group of consultants as not being employees.[81]In his witness statement to the tribunal the claimant says: My reasonable belief was that this was in the public interest for the following reasons: (a) Patient Safety & Clinical Governance: I referenced the findings of the 2020 Paterson Report, which highlighted the systemic danger to patients when private healthcare providers avoid robust clinical governance by misclassifying surgeons as self-employed. Ramsay’s failure to conduct fair, evidence-based investigations was a breach of its duty of care to patients and a failure in its clinical governance obligations (B/p1306). The claimant is trying to say that his concern is about safe clinical governance being avoided by the respondent treating consultants as self-employed. However, that does not seem to be what he was saying at the grievance stage itself. This seems to be a rationalisation after the event, once the claimant knew what he needed to demonstrate in order to be able to make a protected disclosure claim. THE LAW Employee Status
THE LAW
[82]Section 230 Employment Rights Act 1996, so far as relevant states:(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(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.[83]There is no statutory definition of a contract of service. The matter is governed by the common law and associated case law. Whilst the control test, the ‘organisational integration’ and the ‘economic reality’ tests are all useful tools to assist in determining whether someone is an employee or not, there is no single definitive test. The Tribunal must consider all the relevant features of the working relationship in determining whether a given individual is in fact an employee.[84]The most commonly cited starting point is the so-called “multiple (or mixed) test” as set out in Ready Mixed Concrete (Southeast) Ltd v Minister of Pensions and National Insurance [1968] 1 All ER 433. Three conditions for employment were identified:(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 it being a contract of service.[85]Following Ready Mixed Concrete, it has been established that there is an ‘irreducible minimum’ without which it is impossible for a contract of service to exist. This consists of three elements: control; personal performance; and mutuality of obligation. Even where these three elements are present it is still necessary to examine all relevant factors to see whether they are consistent or inconsistent with employment status and determine whether, as a matter of overall assessment, an employment relationship exists (Revenue and Customs Commissioners v Atholl House Productions Ltd [2022] ICR 1059); Kickabout Productions Ltd v Revenue and Customs Commissioners [2022] EWCA Civ 502) The ‘irreducible minimum’ are necessary but not necessarily sufficient conditions for the existence of an employment contract. Once the necessary conditions of control and mutuality of obligation are found, a multifactorial approach has to be applied to determine whether, judged objectively by reference to the contract and the circumstances in which it was made, the parties intended when reaching their agreement to create a relationship of[86]A contract of employment need not be in writing. “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.” (Autoclenz Ltd v Belcher and ors [2011] ICR 1157). The tribunal has to determine what was the true agreement between the parties. It is important for it to have regard to the reality of the mutual obligations and the reality of the situation. As Lord Clarke said in Autoclenz Ltd v Belcher “The question in every case is … what was the true agreement between the parties”. How the parties themselves categorise that working relationship will be a relevant factor. In Stringfellows Restaurants Ltd v Quashie [2013] IRLR 99, CA, Elias LJ said: “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 facts. 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”.[87]Control is not a bright line test. There are some kinds of work where the scope for control is limited. Types of control may vary. Control may be practical and legal, direct and indirect. It is not necessary for the work to be carried out under the employer’s actual supervision or control. Many employees apply skill or expertise that is not susceptible to direction by anyone else in the company that employs them. Thus the significance of control is that the employer can direct what the employer does, not how he does it. Control is a matter of degree. In a more general sense control requires that ultimate authority over the purported employee in the performance of his or her work rests with the employer. 88. ‘Mutuality of obligation’ refers to the obligation on one party to provide work for the other and the obligation of the other to accept that work and carry it out (the ‘wage/work’ bargain.) A one-sided commitment is insufficient: there must be an obligation to offer work and a corresponding obligation to accept it. It does not mean that the employee is obliged to work whenever asked by the employer. It does permit him to refuse work. The question is whether there is an obligation on the claimant to do at least some work and a correlative obligation on the employer to pay for it.[89]The requirement for personal service is relevant to both employment contracts and worker contracts. Where a substitution clause does form part of the true terms of the agreement, the extent of the right of substitution will determine whether the clause is consistent with an obligation of personal performance. Does it provide absolute freedom to either do the job oneself or send someone else to do it, or is it more limited?[90]The issue of control is always relevant but is not necessarily conclusive. In some cases it may be relevant to consider the so-called “integration” or “organisational test” which concentrates on the degree of integration of a worker into the employer’s organisation. Relevant factors may include whether any existing disciplinary or grievance procedure was applicable and whether the individual was included in any occupational benefit scheme. The same issue can be looked at from the opposite perspective. The Tribunal may ask whether the person who was engaged to perform the services is performing them as a business person ‘in business on their own account.’ The degree to which the individual is integrated into the employer’s organisation remains a material factor under the multiple test. Relevant considerations might include whether the individual wears a company uniform or uses the company logo or is subject to the respondent’s disciplinary and grievance procedures.[91]Mutuality of obligation and the right of control are necessary preconditions to a finding that there is a contract of employment. Once those necessary (but not necessarily sufficient) conditions are satisfied the Tribunal must deploy a multifactorial approach and carry out an overall assessment of all the relevant factors present in the particular case. At the third stage of the Ready Mixed Concrete test, it is the tribunal’s task to examine all relevant factors, both consistent and inconsistent with employment, and determine, as a matter of overall assessment, whether an employment relationship exists.[92]Factors which may be considered as a matter of evidence include: whether the individual provides his or her own equipment to complete the work; whether the individual hires his or her own helpers; what degree of financial risk the individual takes; what degree of responsibility for investment and management he has; and whether and how far he has an opportunity of profiting from sound management in the performance of his task (Market investigations Ltd the Minister of Social Security [1969] 2 QB 173. The nature of the investigation may also be characterised as considering the so-called “economic reality” test.[93]Not all details are of equal weight or importance in any given situation.[94]A person in business on his own account will carry the financial risk of that business. So, payment by commission or by the job, or the right to set the rate charged or to participate in the profits (or bearing the responsibility for losses) will usually point towards self employment.[95]Payment of a regular wage or salary is a strong indicator of employment. The label given to and the amount of any payment is not necessarily important. A worker’s right to fix his own remuneration is strong evidence of self employment. The fact that there is no payment of a regular salary will not necessarily mean that a worker is not an employee, provided that the existence of some other benefit can be shown.[96]The provision to the worker of benefits such as sick pay, holiday pay and pensions will suggest a contract of employment whilst the provision by the worker of his own tools, equipment and premises will tend to point towards self[97]The incidence of tax and national insurance is also a relevant consideration. Deductions at source suggest employment whereas gross payments suggest self employment. The opinion of HMRC on status for tax purposes will never be conclusive as to his or her status for employment law purposes. Registration for VAT will also be a pointer towards self-employment.[98]The parties’ stated intention as to the status of their working relationship in law may be a relevant factor but the tribunal must always look to the substance of the matter even if the parties expressly agree on a label with the approval of HMRC. The mere fact that an employee requested that he be treated as selfemployed will not prevent him from later claiming that the arrangement is still, in substance, a contract of service.[99]Section 43B (1) states that: “In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following…(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject…”[100]There is no statutory definition of the public interest. The focus is on whether the worker reasonably believed that the disclosure was made in the public interest.[101]In Chesterton Global Ltd (t/a Chestertons) and anor v Nurmohamed (Public Concern at Work Intervening) [2018] ICR 731 the Court of Appeal rejected the argument that for a disclosure to be in the public interest, it must serve the interests of persons outside the workplace and that mere multiplicity of workers sharing the same interest was not enough. The essential point was that, to be in the public interest, the disclosure had to serve a wider interest than the private or personal interest of the worker making the disclosure. Even where the disclosure relates to a breach of the worker’s own contract of employment there may still be features of the case that make it reasonable to regard the disclosure as being made in the public interest. The following factors may be relevant:(a) The numbers in the group whose interests the disclosure served.(b) The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed.(c) The nature of the wrongdoing disclosed, and(d) The identity of the alleged wrongdoer.[102]The number of people sharing the interest is not determinative. The fact that at least one other person shared the interest was insufficient in itself to convert it into a matter of public interest. Conversely, it was wrong to say that the fact that it was a large number of people whose interests were served by the disclosure of a breach of the contract of employment could never, in itself, convert a personal interest into a public interest.[103]In relation to the factor at (b) above (i.e. the nature of the interests affected and the extent to which they are affected) the disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people, or where the effect of the wrongdoing is marginal or indirect. In relation to factor (c) above, disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people. In relation to factor (d) above, the larger or more prominent the wrongdoer (in terms of the size of its relevant community e.g. staff, suppliers and clients), the more obviously a disclosure about its activities could engage the public interest.[104]In Underwood v Wincanton Plc EAT/0163/15 the EAT held that it was arguable that the public interest test was satisfied by a group of employees raising a matter specific to their terms of employment. ‘The public’ can refer to a subset of the general public, even one composed solely of employees of the same employer. In Morgan v Royal Mencap Society [2016] IRLR 428 it was held that it was reasonably arguable that an employee could consider a health and safety complaint, even one where the employee is the principal person affected, to be made in the wider interests of employees generally.[105]There may be a difference between a matter of public interest and a matter that is of interest to the public. There may be subjects that most people would rather not know about that may be matters of public interest (Dobbie v Felton t/a Feltons Solicitors 2021 [IRLR] 679, EAT). A disclosure could be made in the public interest even though the public will never know that it has been made, and a disclosure could be made in the public interest even if it relates to a specific incident without any likelihood of repetition.[106]The absence of a statutory definition of ‘public interest’ does not mean that it is not to be determined by a principled analysis. The four factors identified in Nurmohamed will often be of assistance. Some private employment disputes will more obviously raise public interest matters than others.[107]For a disclosure to qualify the worker need only have a reasonable belief that his or her disclosure is made in the public interest. The tribunal does not have to determine the objective question of what the public interest is, and whether a disclosure served it. The Tribunal has to consider what the worker considered to be in the public interest; whether the worker believed that the disclosure served that interest; and whether that belief was held reasonably. There might be more than one reasonable view as to whether a particular disclosure was in the public interest and the tribunal should not substitute its own view on this[108]As reasonableness is judged to some extent objectively, it is open to a Tribunal to find that a worker’s belief was reasonable on grounds which the worker did not have in mind at the time. Tribunals should be careful not to substitute their own view of whether the disclosure was in the public interest for that of the worker (Nurmohamed). That does not mean that it is illegitimate for the tribunal to form its own view on that question as part of its thinking but only that that view is not, as such, determinative. The necessary belief is simply that the disclosure is in the public interest and the particular reasons why the worker believes that to be so are not of the essence. A disclosure does not cease to qualify simply because the worker seeks to justify it after the event by reference to specific matters which the tribunal finds were not in his or her head at the time. A tribunal might find that the particular reasons why the worker believed the disclosure to be in the public interest did not reasonably justify his or her belief but nevertheless find it to have been reasonable for different reasons which he or she had not articulated at the time: all that matters is that his or her (subjective) belief was (objectively) reasonable.[109]Belief in the public interest need not be the predominant motive for making the disclosure or even form part of the worker’s motivation. The worker’s motive might, however, be one of the individual circumstances taken into account by a tribunal when considering whether the worker reasonably believed the disclosure to be in the public interest. A worker may seek to justify an alleged qualifying disclosure by reference to matters that were not in his or her head at the time he or she made it, but if he or she cannot give credible reasons for why he or she thought at the time that the disclosure was in the public interest, that may cast doubt on whether he or she really thought so at all. Belief in a public interest element would not have to form any part of the worker’s motivation so long as the worker has a genuine (and reasonable) belief that the disclosure is in the public interest. CONCLUSIONS Employment Status
CONCLUSIONS
[110]I explain my conclusions on employment status first. I bear in mind that there are, in fact, three categories of arrangement which could be described as: employment, worker status, and self-employed contractor status. Although I am being asked to consider and decide whether the claimant was an employee, the respondent has in fact made a concession regarding worker status. The respondent concedes that the claimant could properly be characterised as a “worker” for statutory purposes. I am not required to conclude that, if the claimant was not an employee, then he must have been a wholly self-employed independent contractor. I am called upon to decide solely whether the claimant was employed under a contract of employment so as to give the tribunal jurisdiction to hear his complaints of unfair dismissal and breach of contract.[111]I have to decide whether the requirements for employee status are satisfied in this case. I remind myself, in line with the case law, that this is a multifactorial test and I must consider substance rather than form. The labels applied to a relationship are not determinative. The starting point is the three limbs of the test set out in the Ready Mixed Concrete case.[112]Whilst the relationship was in existence, the parties described themselves as not being in an employment relationship. The claimant signed up to provide his services on that basis. He did not have to do so. He could have chosen to work elsewhere under an employment contract. The terminology is set out in the Facility Rules and Practising Privileges documents. It is not the terminology of a contract of employment. There is no evidence to suggest that the documents in question are a sham or that they did not reflect the true nature of the agreement and the relationship between the parties.[113]During the hearing, the claimant talked about inequality of bargaining power. He suggested that, in effect, he had to “take it or leave it” and that he had no ability to negotiate with the respondent. He suggested that this showed he was the respondent’s employee. However, in reality, even a small business or a selfemployed contractor (who is genuinely in business on their own account) may be faced with such an inequality of bargaining power on a daily basis when they provide their services to a larger client. The larger client may have more bargaining power to define the rules of engagement. In reality, the small business still has the freedom to agree to the terms of business or walk away from the arrangement and provide their services elsewhere. That is the impact of market forces. It was also the case in the claimant’s relationship with this respondent. Even an independent business will have to agree to the terms of business on which they contract with a client. They do not have an unfettered choice as to the terms on which they will do business. It is a question of degree. There is no absolute or clear dividing line.[114]The nature of the sector that the parties are operating in is also relevant. Healthcare is highly regulated. Neither the claimant nor the respondent has complete freedom to contract with others as they might wish. They both have to comply with regulatory requirements. This impacts upon freedom of contract on both sides of the arrangement. It also means that the claimant is under some degree of control as a professional. This is not a consequence of employee status but rather a feature of professional practice within a healthcare setting. The respondent needs to set appropriate conditions to authorise people to use its facilities. It has to have regulatory compliance and adequate clinical governance. The control exercised in this claimant’s case is largely a consequence of the regulatory landscape that the parties were operating in. Whichever model of contract was chosen (whether a contract of employment or otherwise), there would have to be such controls and limitations in order to ensure legal compliance and appropriate clinical governance.[115]The concept of ‘control’ is somewhat difficult to apply in a professional setting, such as a medical consultant’s case. This is because the knowledge and skills of the individual mean that he will never be subject to the same level of control and direction from the respondent as a so-called “unskilled worker”. This is one of the reasons why control and supervision is not the sole issue in this case, it is only one aspect of the applicable test. Thus, my conclusion in this case is that the respondent operated or exercised some level of control over the claimant but this was not a hallmark of employment. Rather, it was a way of ensuring regulatory compliance and safe medical practice coupled with the provision of safe medical facilities and arrangements at the hospital. It was a pragmatic approach and ‘light touch’ control. For example, some procedures were standardised (e.g., handwashing) because it would be preferable (from a compliance perspective) to have everyone on the premises adopt the same procedures in the same location, and to ensure consistency and an appropriate audit trail. Likewise, the choice of prosthesis. There was an approved list of prostheses but a consultant could choose to depart from the list if they went through an appropriate authorisation procedure. This was about balancing the needs of the respondent’s business against the claimant’s need for clinical freedom. There was also some degree of standardisation of equipment, for example in relation to the ablation tool which was changed by the respondent. The tribunal does not know what would have happened if the claimant had asked to revert to his preferred original tool. The evidence rather suggests that he may have been able to go through an approval process for an “off-list” piece of equipment. More contentious was the control over the claimant’s ability to prescribe Pregabalin. He may have been prevented from prescribing Pregabalin and this may suggest control over clinical practice (or there may be another explanation). However, this is but one factor in a larger factual matrix and, in my view, it does not outweigh the evidence which demonstrates light touch control.[116]The commercial reality of the relationship between the parties was that the financial risks and the opportunities for financial reward rested with the claimant in relation to his own work. Hence the payment arrangements. The claimant did not receive a salary. He did not receive benefits such as sick pay or paid holidays or a pension. The claimant would have to pay for things that would otherwise be supplied by an employer (such as appraisals, support services, room rental.) The claimant did not receive payment when he was not working. He was not paid extra fees to redo or correct treatment if a patient was readmitted. He took the financial ‘hit’ associated with that. The claimant had a large role in generating his own client list by advertising and marketing himself. Some of the work would come to him because he was practising at the respondent’s hospital, but not all of it, and the flow of work and the amount of work would not be guaranteed. There was no obligation on the respondent to provide minimum levels of work to the claimant. The respondent could cancel clinics or surgery sessions. Some administrative equipment had to be paid for by the claimant (e.g. computers) and he had to cover the cost of a significant number of business overheads (such as insurance and data protection registration.)[117]In terms of integration into the respondent’s business, the claimant wasn’t ‘held out’ as an employee of the business. A uniform may be of more importance in other sectors but the claimant was not provided with a uniform in any event. He was provided with some scrubs for infection control purposes. He was not required to use the respondent’s email address. Rather, he was required to ensure data security. There was an arm’s length arrangement in relation to staff meetings and social occasions. There were rights to substitution and a duty on the claimant to arrange appropriate cover for his absences. The cover needed, in effect, to be someone from an approved list but it was not the respondent’s duty to arrange the cover for the claimant’s absence. Again, that indicates lack of employment status.[118]The claimant was free to practise elsewhere. He exercised that choice for a long period of time as, for many years, he was also employed by the NHS. Then he chose to focus solely on private work.[119]HMRC’s tax and National Insurance categories are not determinative. Online checkers do not provide this tribunal with much assistance in determining employment status for employment law purposes. The input into the tool determines the output and, in any event, tax status is not the same as employment law status. Different tests are applied in the two different contexts. In any event, the claimant had been responsible for his own tax and National Insurance. He was not a PAYE employee. The claimant also took advice on tax efficiency from an accountant and used a personal services company as a vehicle for payment. That is also a relevant feature of the case which tends to suggest that the claimant was not an employee.[120]I conclude, on balance, that the overall picture is not a picture of employment status. The claimant was not engaged as an employee. Whichever of the various legal ‘tests’ of employment status that one applies to the facts of this case, the weight of the evidence and relevant factors are against a conclusion that the claimant was engaged under a contract of employment.[121]In line with the relevant legal principles, a number of separate questions need to be addressed in deciding this issue. It is important to keep those questions clear and distinct so that the reasoning underpinning the decision does not become confused. I have to consider whether the claimant subjectively believed that the disclosure was made in the public interest at the time that he made the disclosure (i.e. I have to consider the ‘fact’ of the claimant’s belief at the relevant time.) If I conclude that he did subjectively hold the belief that he was making the disclosure in the public interest at the time he made the disclosure, I then have to consider the reasonableness of the belief. Was the belief subjectively reasonable? Was the belief objectively reasonable? (The factors or arguments which demonstrate reasonableness can be found or thought of after the event.)[122]I have considered the fact of the claimant’s belief first. Did he genuinely/actually believe that he was making a disclosure in the public interest at the time he made the allegedly qualifying disclosure? I am to focus on his belief at the time he made the disclosure.[123]In theory, it could be in the public interest for someone to make a disclosure that consultants are wrongly categorised by the respondent as not being employees for employment law purposes. In particular, the correct categorisation of consultants as employees (or some other legal category of worker) may have knock-on effects and implications for a significant number of people within the organisation. The correct categorisation of consultants may not be solely of interest to the claimant in this case. The claimant could have had a belief to that effect at the time that he made the disclosure.[124]However, on the facts of this case as I have found them, I am not satisfied that the claimant did, in fact, hold that belief at the time he made the disclosure. I have concluded that this is something which only came to mind after the fact. He did not hold the belief at the time that he made the disclosure. At the time he did not believe that he was making the disclosure about a breach of a legal obligation and that the disclosure was made in the public interest.[125]It is relevant to consider the contemporaneous references to the public interest within the documentation to see if they are consistent with the belief that he asserts that he held at the time that he made the disclosure. On carrying out this examination, it is apparent that the contemporaneous references to the public interest do not, in fact, relate to the employment status/categorisation issue. They relate to other matters. There is a mismatch. At the time he made the disclosure and raised the grievance, he did not believe that he was making a disclosure about employment status and that this disclosure was being made in the public interest.[126]If the claimant cannot satisfy the tribunal that he actually held the necessary public interest belief at the time he made the disclosure, then the question of the reasonableness or unreasonableness of the belief does not arise for consideration. The claimant has fallen at the first hurdle. There are factors which could be thought of after the event which could justify the necessary public interest belief as reasonable but, if the belief was not in fact held, then this does not assist the claimant.[127]In Judge Butler’s list of issues, it was made clear that the particular breach of a legal obligation relied upon by the claimant was “not treating the claimant as an employee.” It was not some other legal obligation. To the extent that the claimant now seeks to rely on some other breach of a different legal obligation, this is not consistent with the list of issues which identified the basis of the claimant’s claim. I do not consider it permissible for the claimant to depart from the previously stated basis of his case in this way during the course of today’s hearing.[128]I need to consider whether the claimant was making a disclosure of information which tended to show that the respondent was in breach of a legal obligation in not treating the claimant as an employee and whether the claimant actually believed that that disclosure was made in the public interest. The belief in the public interest must relate to the particular disclosure under consideration so that both elements of section 43B(1) are satisfied in relation to the same disclosure.[129]The respondent says that the claimant did not have the necessary reasonable belief that the disclosure was made in the public interest. This was explored in cross examination with the claimant as set out above. It was put to the claimant that, on its face, the letter refers only to the claimant (rather than to a wider group of people.) As already noted, the flavour of the claimant’s responses was that, by necessary implication, this assertion had knock-on effects for other members of the workforce. If they were not properly treating the claimant as an employee, then by implication, they were not treating other consultants as employees. He sought to broaden it out from his own case to that of the cohort of other consultants engaged by the respondent.[130]However, the natural reading of the letter suggests that it is about a personal, individual grievance. The claimant’s concerns and grievances relate to his individual situation. The letter does not, on the face of it, refer to potential problems or difficulties for other consultants within the organisation. On the other hand, it does talk about whistleblowing. The section in question is set out at paragraph 78 above.1 Having reviewed that document, even where the claimant refers to the public interest, he does so specifically in relation to his 1 “Non-Compliance with Whistleblower Policy: Ramsay UK’s Whistleblower Policy outlines protections and fair treatment for employees raising concerns. My suspension, without proper investigation, undermines these principles. You may recall that I previously complained about bullying and harassment at work, in particular by a nurse, namely Naomi Dixon in January and February 2021. Regrettably, nothing was done and I felt unsupported by Ramsey during a lengthy period of suspension, which did not result in any disciplinary action. I feel that I am now being singled out and victimised because I raised health and safety issues (e.g., bullying and harassment, which is are matters of considerable public interest). You may recall that I was humiliated in front of the theatre team at Fulwood Hall Hospital in or around January 2021 when I was forced to explain my suspension and divulge sensitive personal information about an earlier suspension, in breach of the GDPR and Data Protection Act 2018. I trust that I am not being subjected to a detriment and/or victimised for raising concerns about bullying and harassment at work. Since then, many trivial issues, which cannot be justified have been raised. I would be happy to provide a list of each incident/event, and people involved at a meeting.” previous allegations of bullying and harassment and alleged health and safety issues (rather than in relation to the employment status issue.) The public interest is not referenced in relation to the employment status of the respondent’s consultants. The link that the claimant seems to make to the public interest is not a link between this relevant disclosure and the public interest. Rather, it is a reference to the public interest in connection with an entirely different disclosure (which is not the disclosure for the purposes of this Employment Tribunal claim). Nowhere does the claimant go on to say something along the lines of: “If I am not being treated as an employee then the same is likely to be true of other consultants, I wonder if they are aware of the improper denial of their rights as employees.” A statement of this type would at least provide a factual foundation from which to conclude that the claimant believed he was making a disclosure in the public interest at the relevant time.[131]My conclusion is that there is nothing on the face of the disclosure that is under consideration (as the basis for the claimant’s protected disclosure claim) which makes reference to a belief that the disclosure is made in the public interest or that it affects other consultants. The only way that one can make this link is to impute this belief to the claimant on the basis that he ‘must have’ thought that he was making this disclosure in the public interest because he knew that other consultants were engaged on the same terms and conditions.[132]I have looked at other documents to see if there is a further basis for accepting this proposition, in particular, the grievance meeting notes at page 1004-1009. There is a quote at the top of that document from the claimant, “it is mainly about the fact that I have been suspended with no following of Ramsay policy by CR. I have not been asked to provide a report or discuss the case, the 1st I heard about the suspension was from JW when I was verbally suspended on 30th May 2024.” The contents of the meeting are subsequently all about the claimant’s personal circumstances and the way that he has been treated, effectively that he has been unfairly singled out. He does not say that he was one of the cohort of consultants being treated in the same (or a similar) way.[133]At page 1009 the grievance manager refers to the claimant’s status as an independent contractor. The claimant did not come back to indicate that this was wrong or incorrect or that he was saying that it was wrong to treat the group of consultants as not being employees. This would have been an opportunity for the claimant to broaden out his concerns to include others rather than just himself. He did not take this opportunity. So, I have concluded that there is nothing in the grievance meeting notes to indicate that the claimant actually believed he was making this particular disclosure in the public interest or even in the interests of the consultants as a group.[134]In his witness statement to the tribunal the claimant says, “my reasonable belief was that this was in the public interest for the following reasons” and sets these out at paragraph 11 of the witness statement. Those reasons are not what was said at the time. It is not part of the contemporaneous record. The claimant is trying to say that his concern was all about safe clinical governance being avoided by treating consultants as self-employed people. This does not seem to be what he was saying during the grievance stage itself. This may be some form of rationalisation after the event, once the claimant realised what needed to be shown in order to make protected disclosure claim through the Employment Tribunal.[135]In summary, the first question is whether the claimant genuinely believed, at the time he was making a disclosure that he was making a disclosure in the public interest. This asks me to focus on his belief at the time and not his belief afterwards. There needs to be an actual belief that the disclosure is made in the public interest at the time of the disclosure itself. It is only then that I have to consider whether the belief was reasonable and whether the claimant reasonably believed that the disclosure was in the public interest. The fact of the belief and the basis on which it can be said to be reasonably held are two separate things. Reasonableness can be based on matters and include things that come to mind after the event but the belief that the disclosure is made in the public interest has to be present at the time the disclosure is made.[136]For the reasons stated, I am not satisfied that the claimant in fact held the belief that the disclosure was made in the public interest at the time that he made the disclosure. At that time he did not believe that he was making a relevant disclosure of a breach of the legal obligation and that he was doing so in the public interest. It is something that I do not think he was considering or thinking about at the time. The contemporaneous references to public interest do not relate to the employment status question. They relate to other matters. If he did not have that belief at the time, it is irrelevant whether the belief could be said to be reasonable either subjectively or objectively. There are factors which could be considered after the event from which I could conclude that such a belief would have been reasonable. But if he did not have that belief at the time then he cannot be rescued by the fact that there are arguments in his favour to indicate that disclosures about employment status might be reasonably believed to be in the public interest. In short, I have concluded that the claimant is retrofitting his case to accommodate the requirements of the legislation so that he can make a protected disclosure claim to the tribunal.[137]In addition, I note that it could be observed that, just because the employment status question would potentially have relevance to more than one person within the organisation, this does not necessarily, of itself, make it a public interest issue. The numbers involved do not always indicate that a disclosure could be made in the public interest, particularly where the issues concerned are essentially a private legal dispute. As the case law cited above shows, the numbers involved are only one of the factors to be considered in deciding the public interest question. Approved by: