An employment tribunal has rejected a doctor’s unfair dismissal claim because it held that he did not come within the definition of being an ‘employee or a worker’.

The case involved a doctor who worked for an NHS Trust dealing with out-of-hours calls. He was also a member of a co-operative that provided services on an ad hoc basis to a care centre at one of the trust’s hospitals.

His agreement with the co-operative described him as self-employed contractor. He submitted invoices that were paid gross without any deductions for tax or National Insurance. The co-operative was not obliged to provide him with any shifts and he was not obliged to accept them when they were offered.

The doctor then brought various complaints against the trust and the co-operative including detrimental treatment, unfair dismissal and direct racial discrimination and victimisation.

The tribunal dismissed the claims on the basis that the doctor was not an employee under the Employment Rights Act 1996. The judge allowed him to appeal on whether or not he could be classed as a worker, which would offer him some legal protection and possibly allow him to bring his claim.

However, the Employment Appeal Tribunal dismissed his appeal, noting that his role for the co-operative was missing exclusivity because he was free to work or not as he chose and wherever he chose.

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