Dr Westwood was a GP and senior partner in a small surgery in Cheshire. The respondent in this case was the Hospital Medical Group Ltd (HMG) which has clinics throughout the UK and Europe. HMG engages surgeons and doctors to perform surgical and non surgical procedures which are allocated according to demand at the time.
During 2005 Dr Westwood was approached by HMG and agreed to undertake procedures relating to hair restoration on its behalf.
Dr Westwood’s contract was a contract for services which referred to him as a self-employed independent contractor. Under the contract Dr Westwood was also required to pay all tax and national insurance as a self-employed person; was not entitled to sick pay or holiday pay; was not obliged to work a set number of hours or set times or to accept any assignments given to him by HMG; and was solely responsible for safety and for taking out professional indemnity insurance.
Following termination of the contract on 19 August 2010, Dr Westwood claimed for unlawful deductions from wages and holiday pay.
At the Employment Tribunal (ET) Dr Westwood’s primary case was that he was an employee within the meaning of section 230(3)(a) ERA. This submission was rejected by the ET as there was no mutuality of obligation between the parties and HMG had no direct control over Dr Westwood in carrying out his activities. The ET then went on to consider whether Dr Westwood was a “worker” as defined under section 230(3)(b) ERA.
The ET felt that Dr Westwood was engaged personally to carry out the work himself, he had no right to delegate the work and had been instructed on the basis of his own special skills. HMG was not treated as Dr Westwood’s client or customer. The patients were customers of HMG and Dr Westwood was paid a percentage fee for each treatment performed. Accordingly the ET held that Dr Westwood was a “worker” within the meaning of section 230(3)(b) ERA.
On appeal by HMG to the EAT, Judge Peter Clark considered the decision of the ET to be “plainly and unarguably right”. He stressed that the work performed by Dr. Westwood for HMG was wholly separate from any other work he did and the services were being provided exclusively to HMG.