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Thanks to Butterworths.co.uk Are doctors contractually employed?A recent EAT ruled that GPs do not have a contractual relationship with the 'employing' Health Authority and that their mutual obligations are governed by statute, not contract. Kolarete Sonaike, barrister specialising in employment law explains why to Velida Pearce ... The employment status of GPs is not a subject that bothers us when we sit in the surgery, however, many patients would be at least slightly surprised to learn that their GPs can neither claim unfair or constructive dismissal, nor can they argue that they have been treated in a discriminatory way on the basis of their race or sex discrimination. But this position has become very clear following the decision of the Employment Appeal Tribunal in David-John v North Essex Health Authority BLD 1808032990. Kolarete Sonaike, barrister specialising in employment at 8 Bell Yard who represented Dr David-John, explains that the EAT has ruled that GPs do not have a contractual relationship with the 'employing' Health Authority and that their mutual obligations are governed by statute, not contract. "The EAT decision is the right decision," says Sonaike. "The original decision of the employment tribunal [which ruled in favour of Dr David-John] was not as comprehensive as it needed to be in order to be justified." The barrister says that the employment tribunal did not address a number of issues that were relevant for the case: "They came to a view without talking about previous cases to any great degree. I had told my client that we were fortunate to have won at the tribunal stage." Originally, the GP brought a claim of unfair dismissal and unlawful discrimination but the North Essex Health Authority argued that an employment tribunal had no jurisdiction to hear the complaint of unfair dismissal because they had never employed him. A chairman sitting alone at Watford tribunal decided in favour of the GP but the North Essex Health Authority appealed. The whole issue has to be dealt with again in the EAT and it is now clear-cut that "GPs relationship with the health authority is governed by statute. Statute prescribes that GPs will be paid x amount in return for y and z. It was determined in this case � as well as in many previous cases � that that does not create a contractual relationship because a contract requires that parties are free to determine their own terms," explains the barrister. Given there is no contract, GPs cannot claim unfair dismissal. "In fact," continues the barrister, "we lost on both grounds: it was decided that there was no contractual relationship and that, if there was one, it was not one of employer and employee but of self-employed status." As a consequence, Dr David-John could not bring a claim of race discrimination either. The third �contractual� possibility is defined as a 'contract personally to execute any work or labour' but the EAT ruled that one out too. "On that point I disagree with the EAT," says Sonaike. I think they are probably right that there is no contract but I think if there was one it would have been a �'contract personally to execute any work or labour'". The barrister mentions that this issue was central to a number of cases and quotes Ealing Hammersmith and Hounslow FHSA v Shukla[1993] ICR 710 where it was decided that if there is a contract it is a contract to execute personal work and labour. "This aspect of the EAT decision is certainly arguable. The Court of Appeal came to a different conclusion in the case of Roy v Kensington, Chelsea and Westminster Family Practitioner Committee[1990] 1 MLR 328. In effect, the Court of Appeal found in our favour but were then overruled by the House of Lords on a different point," says Sonaike and adds: "GP-s remain a special breed - independent professionals whose status could not be compared with either employees, self employed, public or crown servants." (04/12/03) If you have any comments about this or any other news item or feature, please respond via e-mail to: [email protected] Case annotations in other services:- |