Sreekanta v Medical Relief Agency (Stoke On Trent) Ltd [1993] UKEAT 536_91_0810

EAT
Sreekanta v Medical Relief Agency (Stoke On Trent) Ltd
[1993] UKEAT 536_91_0810 · 1993-10-08

JUDGE J HULL QC:

This is an appeal by Dr Sreekanta, who is a medical practitioner against a decision of the Industrial Tribunal sitting at Birmingham on 17th June 1991, their decision being promulgated on 12th July 1991.Dr Sreekanta complained to the Tribunal that he had been unfairly dismissed by an organisation called the Medical Relief Agency, of Stoke on Trent. He was employed full time as a doctor by the Sandwell Health Authority. He was a hospital doctor and was employed in geriatric psychiatric work. In the evenings he chose, quite voluntarily, as many doctors do, to take part in a relief service. Every Thursday he used to attend between certain hours. The Relief Agency provided a car and a driver and there was also an organisation at base, a lady or gentleman with a telephone. If emergency calls came in, for any one of a large number of general practitioners in the area, then the administrator would give Dr Sreekanta the details. Usually there would be a number of calls in the course of the night, as one might perhaps expect. In general Dr Sreekanta and his driver, who no doubt knew the district, would go to the calls in the order which the administrator requested. Dr Sreekanta, of course, had a discretion in cases of emergency to go to the calls in the order which he thought their medical importance merited. It is very hard to see how any system which relied on a doctor's skill could have other arrangements than that. In the first place a great many of the calls at night would be emergencies; people do not normally ring up their doctor to say that they seem to be developing a cold in the middle of the night. If there is a call in the course of the night, when the general practitioners normally hope to be off duty, then it is likely to be some sort of emergency and it is for the doctor, in this case Dr Sreekanta, to say whether it sounds as though he ought to present himself first at a particular address. In other cases it is perfectly obvious that the administrator will suggest the order in which the calls are to be answered. It may have something to do with the order in which the calls are received. It will have something to do with geography, because if one has a large area it is rather easier, if you are sitting at base with a map, to say which is the convenient order than it is for the doctor sitting in the darkness in a car which is perhaps being driven fairly fast from place to place. It would be natural for the organisation to indicate the order in which it appeared to the organisation the calls should be answered.Dr Sreekanta was first employed in 1979 or 1980 in this part time work, and the work went on until December 1990 when, apparently, there was some difference or other which led to the organisation saying that it would offer Dr Sreekanta no more work. He complained on the 5th February 1991 to the Industrial Tribunals' Central Office that he had been unfairly dismissed and there was a preliminary point which the Industrial Tribunal had to decide; it was said by the Respondents, the Relief Agency, that Dr Sreekanta, like the other people who worked for them, was not in fact an employee at all. It was not a contract of service. It was a contract for services. As always when that issue arises there were a number of matters which could be looked upon as indicative. It is fundamentally a question of fact for the Tribunal. If they apply the law correctly it is not our duty, indeed we are expressly prevented, from going into their findings of fact.The decision of the Tribunal appears to us to be a careful one, arrived at after hearing the evidence. The Tribunal, which of course contains experienced members and is presided over by a legally qualified Chairman, set out the facts. They mentioned many of the matters which I have already mentioned. They said how the Agency was organised, no less than 150 practitioners made use of the service, and they went on:
"4. The applicant's evidence was that the telephonist, employed by the respondents, notifies to him the patients he is to attend and gives him information, with outline medical indications but, we find on the evidence, that he used to take the ultimate decision as to the order in which he is to go to patients and it is for him, and not the telephonist, to decide on those who are to have priority. He kept records of the calls . . ."
and he received a fee for each patient he called on as well as a basic rate for his eight hours work at night. They mention for the first time something which arose later:
"He was paid gross. No tax was deducted. He is taxed under Schedule D, which is the method applicable to someone who is in business on their own account rather than an employee. On the evidence that is the way in which the respondents organise the payments made to all the doctors who work for them.The initiative for that method of payment comes from the respondents, but it seems that the deputising doctors, and certainly the applicant in this case, accept gross payments without question. We find the applicant is aware that the payment of gross fees has significant tax advantages for him.
5. The applicant employs an accountant to draw up accounts for him in relation to his work for the respondents. If he were taxed under Schedule E he would not be able to charge against his income the expense of travelling to and from Birmingham to the base of the respondents at 37 Stoke Road, but under Schedule D he can do so. In addition we note that on the accounts which were prepared for 1988 and 1989, he not only included the gross fees he had received from the respondents, but also fees from other deputising work [Dr Sreekanta had other work of the same sort which he did] and his cremation fees. In his accounts, the expenditure he charged against income included an allowance for his wife, his telephone calls for business only purposes, sundry out of pocket expenses and accountants charges."If I may pause there, these are all very proper deductions for a Schedule D man, a self-employed man, but in general they would not be accepted by the Revenue if an employee sought to claim them under Schedule E, even if he was a professional person. Of course it is a different test under the Statute as to what matters are properly deductible in drawing accounts. They go on:
"6. We find, on the evidence, that the applicant did not have to do the work on Thursday nights personally. He could give notice that he was not going to do the work and if he did so it would be normal for him to arrange a deputy from among those doctors who were, as it were, on the books of the respondents and who were known by them to be insured. The reason he had to give some advanced notice was, we find, to avoid administrative difficulties for the respondents and, we find, there was no contractual obligation to give any notice at all. It was a matter of good practice and convenience . . ."
and they go on in another passage which Mr Whitmore read to us:
"For that reason, and as a matter of courtesy, he would give as much notice as he could. However we find, and this is the real point, that the applicant was not required to perform the work personally, he could send a deputy or arrange for a deputy to do it who had to be, however, from the particular pool of doctors to whom we have referred. In an emergency the respondents might however ask some general practitioner, who did not work for them regularly to perform the deputising service at short notice. We find that he did not have to give any reason for non-attendance, and that the respondents found doctors to take over his work on some occasions.
7. We also find on the evidence that the applicant could absent himself for a long period, either for holidays, because he was on a course, or for some other (good or bad) reason, and that the respondents could not and would not object if he did so . . . The applicant received no pay if he did not travel to the base to work, whether he was on holiday or sick, or otherwise."Then they go through how the work came to an end; and they deal with the question of discipline. One of the witnesses, Mrs Bissell, had told them that she could discipline the Applicant, if she needed to, but another witness told the Tribunal that there was no method of discipline which could be applied, except simply telling this professional man that they would not be offering him more work, or not be offering it to him for a particular period.The Tribunal, after dealing with those matters, go on to another passage which has been cited to us by Mr Whitmore so I will read that:
"11. A number of tests and criteria have been suggested. [this is as to whether it is a contract of service or contract for services, they refer to a number of tests.] We ask ourselves, in this case, whether it is of the essence of the contract that the applicant undertakes to provide a personal service to the respondents. If he is entitled to send a substitute to perform his duties instead, that will usually be enough to demonstrate that the contract is not a contract of service [see Ready Mixed Concrete (South East) v. Ministry of Pensions and National Insurance [1968] 2QB 497 ]. It has been said that the obligation to render personal service is of crucial importance, but of course it not conclusive. In the special circumstances of this case, and we remember that we are dealing with doctors, it was open to the applicant to send some other doctor preferably from among those who were already on the books of the respondents and who were known to be insured, although, on the evidence, it might be some other doctor. The applicant could make those alternative arrangements himself and, we find on the evidence, in practice, the respondents did not object if those arrangements were made by the applicant."
and they refer to again (a passage read to us by Mr Whitmore at the end of paragraph 12) to further tests, such as whether a man is employed as part of the business or whether, under a contract for services, his work done from the business is not integrated into it but is accessory to it. They say that the mere fact that a doctor necessarily has a very wide sphere of discretion does not mean that he cannot be an employee. They are quite right about that, they refer to Cassidy v. Ministry of Health [1951] 2KB 343.At the end of paragraph 14 they ask themselves a very important question, perhaps the decisive question, was he really in business on his own account, was he his own boss? They go on:
"15. We find that the reality of the situation in this case was that the applicant was in every relevant sense running a business in his own time, bearing in mind that he was employed by the Sandwell District Health Authority as an employee. The business was broadly one giving medical services. He prepared accounts on that basis, at any rate for tax purposes, as we have already indicated. This was not the only deputising or extra mural job which the applicant did, as is apparent from his accounts. We bear in mind that some times a cynical view can be taken concerning arrangements the parties make between themselves. They may dress up a situation in some particular form because it suits them for fiscal or other purposes and that form may not correspond with the reality of the situation."
Then they say at paragraph 17:
"17. We have paid particular attention to the following factors. First the control over the applicant when he was doing his work was minimal. That, we note may be ambiguous because control would be minimal if he was clearly employed in some capacity as a doctor. He would not wish to say that his professional obligations override any contractual obligation. But, nevertheless, bearing in mind, we find in this case that there was minimal control over what this doctor did for the respondents. He organised the sequence in which he responded to calls, ultimately, and, of course, nobody could interfere with the way in which he actually treated patients. There could be criticism of the priority of calls, or the treatment of patients, but while he was actually doing the job he was responsible for deciding those matters. The control was, as it was called by the respondents, not a direct disciplining control but more a monitoring exercise."
Paragraph 19 returned to the question of tax. They say:
" We find, on the evidence, that the Inland Revenue had not been complacent and compliant about this matter. This point is secondary. It merely tells us how others have perceived the relationship . . ."
The views of others are less important than the views of the Applicant himself and the views of the Revenue or of the National Insurance authorities will never be conclusive. Clearly that must be said. But here we have a case in which year after year Dr Sreekanta, with the aid of his accountant, another professional man, prepared accounts on the basis that he was self-employed and made deductions from them on the basis that he was self-employed, and then made his return on that basis declaring that it was a truthful and full return of his affairs. We have no doubt that his remuneration as an employed doctor in the National Health Service was something which was correctly dealt with under Schedule E. In those circumstances it appears to us that it is proper to put weight on these matters amongst all the other factors, and the Tribunal were certainly well entitled to take account of them. They say in paragraph 20 that he could choose when he worked and when he went on holiday, and that when he was ill he would not be paid. Having borne all those matters in mind, in the course of this very long and carefully reasoned decision, they say that he was self-employed and not an employed person, in his spare time or part-time employment, with the Agency.I think it is fair to say that we would have been surprised by any other result. It appears that not only this doctor but all his colleagues had been paid on a self-employed basis when working for this Agency. It is a very remarkable thing, and this is simply a matter of comment, that Dr Sreekanta for all these purposes, his income tax, his accounts, his national insurance and so forth, was content to treat himself as self-employed over the years. He certainly enjoyed the rights which the Tribunal set out and he did not demand a contract of employment, setting out his rights to warnings and matters of that sort.Nonetheless, as Mr Whitmore has said, the Tribunal was under a duty to consider the matter in accordance with proper legal principles and if it can be shown that they adopted incorrect principles then there is an appeal to this Tribunal. Mr Whitmore starts by conceding that the Tribunal could in fact, as a hypothetical matter, have decided this matter either way. He says his complaint is not that they decided it in the way that they did but in the manner they went about it and he makes two complaints, which he says are complaints of law. He says that they treated the "exceptional" case as being the norm; this relates to the question of choosing which patient to go to. He says that the Tribunal treated that as an indication of control, whereas it was only in the emergency case. The same rule would apply to a hospital doctor, he says; a hospital doctor might, hearing that a patient had had a heart attack or perhaps a stroke, naturally go to him first even if the employers said "we want you to attend first to the patients who are awaiting hernia operations" or something of that sort.All that is perfectly true but we do not think there is any such error in the approach of the Tribunal. The fact is that most of these calls will be in the nature of emergencies and in those circumstances the Tribunal was well entitled on the evidence to find that the doctor was basically in control of which patients he went to. We do not attach quite such importance to that as the Tribunal does but it is for the Tribunal to assess the facts and to say what weight they attach to them. We think that on proper analysis, and looking at the evidence and applying our commonsense, there is nothing in that complaint.Mr Whitmore then turns to the question of the need to perform work personally. Here again, he says the Tribunal made a mistake. He says this is not a case of Dr Sreekanta being entitled to employ a locum that would make a very important difference, he says. But here the Tribunal were attaching great importance to his ability to obtain a substitute when in fact all that happened was that if Dr Sreekanta, for good reason or bad, said "I am not going to come in next Thursday or the Thursday after next, I am going on holiday" or whatever it might be, he himself could arrange a substitute; preferably from the panel of doctors, or with the agreement of the agency perhaps another doctor might be accepted as a substitute. That is a very different thing, says Mr Whitmore. We entirely agree with Mr Whitmore that it is a different thing, but we do not detect any error of approach. It was highly material to the decision of the Tribunal if they found that Dr Sreekanta was not obliged to attend on any particular occasion; could, without breaking his contract in any way, simply say, "I am not going to attend"; and could, if he wished to be helpful, arrange a substitute himself or leave it to the Agency to arrange a substitute. We cannot see why the Tribunal should not have taken that into consideration and we do not think that the way in which they dealt with that in their decision shows any error of law.It seems to us that Mr Whitmore, with respect, is doing precisely what the Court of Appeal and, indeed, other Courts have said repeatedly we are not to do; going through the entire evidence and the decision of the Tribunal and saying - well here one can show some point, which one might possibly criticise, here they should not have attached so much importance to this; there they seem to have misapprehended the evidence. We think those criticisms, on a proper analysis, do not show any error of law by the Tribunal. We think they approached their task, which was one of considering all the evidence, correctly. We think they identified many points which they were entitled to identify as being of importance; we think that they plainly attached less importance to some and more importance to others; we think they were well entitled to do that and we certainly do not find that they were guilty of any misapprehensions.There is no point of law here and we therefore have to dismiss the appeal.