Judge CowxIn person for claimantMr Hari Menon (instructed by Counsel) for respondentDate 2 May 2026
JUDGMENT
[1]The claimant’s claims of unpaid holiday and unlawful deductions from wages fail because she was not a worker as defined by Section 230(3) of the Employment Rights Act 1996. Introduction[1]By her claim form presented on 19 June 2025 the claimant complained of unpaid holiday pay throughout the period when she worked for the respondent. Issues[2]The parties had agreed a list of issues. The first issue to be determined by the Tribunal before it could go on to consider whether the respondent had failed to pay holiday pay or made unlawful deductions from wages was that of worker status. That is to say, was the claimant a worker or was she self-employed and providing her services to the respondent as a business? Evidence[3]The parties had agreed an electronic bundle of documents which ran to 288 pages. I was also provided with witness statements by the claimant and by Miss Bethany Miller, the respondent’s Operations Manager.[4]The claimant and Miss Miller gave oral evidence, and both adopted their witness statements as their evidence in chief. Relevant Legal Principles – Employment Rights Act 1996[5]Section 230(3) of the ERA 1996 defines “worker” as follows: 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;[6]The respondent relied upon the case of Autoclenz Ltd v Belcher & Ors [2011] UKSC 41 and the principal that the Tribunal must determine the true agreement between the parties.[7]The respondent also relied upon the case of Pimlico Plumbers Ltd v Smith [2018] UKSC 29 and the principal that a genuine right of substitution is inconsistent with an obligation of personal Service. Findings of Fact[8]The claimant is a medical doctor specialising as a general practitioner (GP). She is currently in a salaried position but during the period from January 2005 to May 2025 she worked on a non-salaried basis as an out of hours (OOH) GP for the respondent and other GP practices.[9]The respondent is a not-for-profit company providing OOH and other GP services to St Helens and part of Knowsley. The respondent engages a mix of salaried and non-salaried GP doctors and non-medical prescribers. In this part of the judgment, I shall use the neutral term “non-salaried GP” until such time as I arrive at my conclusion on the claimant’s employment status.[10]The non-salaried GPs form a pool upon which the respondent draws to meet its service obligations. GPs from the pool are allocated shifts by the respondent and paid for their services.[11]The claimant began working for the respondent in early 2005. At no time was she provided with a written contract by the respondent nor did she ask for one.[12]She ceased working for the respondent in May 2025. She did not give notice nor was she required to give notice. She simply ceased accepting available shifts offered by the respondent.[13]The respondent offered its non-salaried pool GPs shift sessions on particular days and times. The respondent was under no obligation to offer shifts to the nonsalaried GPs, and those non-salaried GPs were under no obligation to accept shifts offered or to work a minimum number of shifts per week, month or year.[14]Over the 20 years she worked for the respondent, the claimant worked regular shift patterns which suited her. From 2019 her regular shifts were on Monday 09:30- 18:30, Tuesday/Wednesday 23:59-07:00, and Wednesday 19:00-07:00. Other nonsalaried GPs had their own regular shift patterns. On top of this she did additional shifts on an ad hoc basis when needed and when it suited her.[15]The claimant was not required to give the respondent specific notice if she was unable or unwilling to work a particular shift, although in practice as a common courtesy, she did so. In the event the claimant did not wish to work a particular shift, the respondent would offer the vacant session to another non-salaried GP in its pool.[16]The claimant was given an email account and address by the respondent as well as an electronic key fob to enable her to access its premises. The respondent also provided the claimant with an identity card bearing the words “St Helens Rota GP Emergency Doctors”, “NHS” and the claimant’s title, name and photograph. Those non-salaried GPs who worked less regularly were not issued with a fob.[17]The claimant attended training and education sessions provided by the respondent. Some of these activities were mandated by her professional body to maintain competence, but the respondent did not require the claimant to attend specific training, only that she satisfied the requirements of her own professional registration.[18]The claimant assisted the respondent from time to time by agreeing to allow trainee GPs to accompany here.[19]The claimant was paid by the hour. This hourly rate was set by the respondent. From 2005 to April 2023, she received payment for her services directly into her bank account without having to submit a timesheet or an invoice. The respondent paid her based on its records of the sessions she had worked. This changed in April 2023, when she was required to submit timesheets before being paid. Then in June 2024 she was told that she had to invoice the respondent for her work.[20]Prior to 2020 the claimant worked elsewhere in addition to working for the respondent. In 2005 and 2006 she worked 2 hours per week for a St Helens GP practice. She worked 4 hours a week for a Widnes GP practice from 2005 to 2011. In 2011 to 2012 she did occasional GP agency shifts in the region, averaging 1 to 2 per month. From 2011 to 2020 she worked 4 hours per week as a GP at an inpatient psychiatry unit. She worked exclusively for the respondent from November 2020 as her regular hours working for the respondent increased.[21]The claimant was not paid on a PAYE basis. She was paid gross for her services, less personal contributions to the NHS pension scheme. The claimant was responsible for paying income tax and national insurance to the HMRC.[22]The claimant referred to GPs who provided their services to different practices as having a “portfolio career”. The claimant had such a portfolio career because she worked for different practices as it suited her.[23]In January 2025 the respondent introduced a new shift booking system which required clinicians to bid for shifts each month on an online platform. This new system meant that the regular shift pattern hitherto enjoyed by the claimant was no longer guaranteed. The claimant feared losing many or most of her previously regular shifts and so she began to look for alternative employment. She applied for and succeeded in securing a salaried GP post with her current employer. Discussion and Conclusions – Constructive Dismissal[24]My task was to decide whether the claimant enjoyed the status of worker as defined by Section 230(2) of the ERA 1996 or whether she was conducting a personal business enterprise providing a service to a client or customer, namely the respondent.[25]For the claimant to qualify as a worker there must first be some form of contract between herself and the respondent. This need not be in writing. In this case there was no written contract. The contract was an oral one. The terms of the agreement included a term relating to remuneration for shifts worked by the claimant for the respondent. It was a term of the contract that neither party was under any form of mutual obligation to provide work or to take on work. The claimant was at liberty to refuse work if offered and she was not even required to provide notice if she became unavailable to work shifts offered to her. The claimant accepted that she was not included in the respondent’s annual leave system, which was for salaried employees, and there was no provision in the contract for the payment of holiday pay. This must be the case because the claimant would have relied upon that provision if it existed.[26]Having established there was a contract between the claimant and respondent, albeit oral, I went on to determine the true nature of the agreement and the relationship between the parties. I concluded for the following reasons that the claimant was operating a business and was selling her services to the respondent as a client or customer.[27]The claimant was a locum GP whose preference was to work shifts that suited her. Hers was very much a portfolio career. The fact that she became settled working for a single practice is not inconsistent with such a label. At various times she worked for different medical practices. She went wherever the shifts and the pay suited her. The fact the respondent became her sole source of income did not alter the reality that she was running a portfolio business. At that time, her portfolio consisted of a single client, because it offered her the shift pattern and the remuneration she wanted at the time. She was free to take it or leave it.[28]Whether or not she could nominate a substitute to perform the work she had contracted to do for the respondent was never discussed. But the reality was that no such arrangement was necessary because the claimant was one of many qualified GPs in a pool of such doctors maintained by the respondent. If the claimant was allotted a shift and then could not perform that responsibility, the respondent did not require the claimant to find a substitute, because substitutes were potentially more readily and more immediately available to the respondent, from its pool of locum GP’s. Furthermore, the respondent was under a duty to its patients to ensure only that only suitably qualified, current and competent GPs were deployed and so in reality personal substitution cannot have been a realistic consideration.[29]The key aspect of the relationship between the claimant and respondent was the absence of mutual obligation. The respondent was not obliged to offer work to the claimant, and the claimant was not obliged to accept work offered. On her own account the claimant did not have to give any notice at all if she decided she did not want to attend for a session already allotted to her. When the respondent altered its systems and processes, the respondent’s “offer” was no longer as attractive as it had been for many of years. At that point the claimant simply walked away, without giving any notice to the respondent, as was her right as part of a commercial enterprise.[30]The fact the respondent set the rate of pay does not provide support to the claimant’s contention that she was a worker. This was part and parcel of the commercial agreement between parties. The client set its rate and the contractor decided whether to take it or leave it.[31]The other points raised by the claimant in support of her claim to being a worker also carry little or no weight. Being given a key fob, an email account and an identity card were mere aids which assisted her in delivering a service to a client. They did not make her integral to the business. Similarly, attending non-compulsory training and education events laid on by the respondent was perhaps a bonus over and above her remuneration package, but it did not make her a worker. The same is true of mentoring trainee GPs. She was not paid for this task, she was not directed to do it, and it seems that that it was simply a case of her agreeing to allow individuals to join her when she was working shifts. It is creditable that an experienced GP such as the claimant was willing and perhaps happy to mentor junior colleagues in this way, but it did not alter her employment status. Conclusion[32]For those reasons the claimant was not a worker and her claim to unpaid holiday pay fails and is dismissed. Judge Cowx 2 May 2026