On the ground: paid leave in question

by Neil Hallows

The BMA won back £300,000 for doctors who were denied pay for annual leave, in a case that raises questions about when people are truly self-employed

Location: UK
Published: Sunday 16 May 2021
practice general
BMA in the news Illustration

The BMA won thousands of pounds in back pay for GPs after spotting they had not been paid for annual leave.

The case, which goes to the heart of when doctors are self-employed or have legal rights as ‘workers’, came to light when there was a change in the provider of OOH (out-of-hours) services, from an NHS community trust to a social enterprise.

The trust had expected the GPs to transfer under TUPE legislation with the same conditions under the social enterprise, and it had talked about making them employees to ensure this, but had not progressed the work, and the transfer did not place.

However, while in contact with the GPs, the BMA staff member came to a discovery which was to have considerable financial implications.

One of the sessional GPs had not been able to provide many sessions last year because she had contracted COVID-19. She sought advice as to whether she would be entitled to any COVID-related pay, and the issue of annual leave payments arose. The BMA staff member checked her payslip and established there had been no annual leave provision. She raised it with the trust, assuming – correctly – that if one GP had not received it, then the others would not have done either.

She needed persistence but is not the type to give up easily. And this was a trust which could have saved itself trouble by giving proper contracts to all GPs who worked for it and making a transfer possible to the new provider.

The key here was whether the GPs were self-employed contractors, or whether they were ‘workers’, in a legal sense. It is an area of law where there are still grey areas.

Hundreds of thousands of people have been deemed to be self-employed, but as a convenient fiction where they lacked most rights and benefits. Now, the self-employed have to meet a number of definitions, such as whether they can hire someone else to do the work, are in business and can make a loss or profit, and work to a fixed price no matter how long the job takes to finish. Following these definitions, it is clear these doctors were ‘workers’ rather than contractors.

For some who relish the freedom of being self-employed, this has been a headache. But for many, it has meant being given the rights that others take for granted – statutory rest breaks, protection against discrimination, and a maximum working week or the ability to opt out if they choose.

Without wishing to throw in too many definitions, there is a third category – employee – into which most NHS hospital doctors would fit. They have the same rights as ‘workers’, but have additional benefits such as sick pay, and maternity, paternity, adoption and shared parental leave and pay (workers only get the pay, not the leave), as well as protection against unfair dismissal.

Having been wrongly denied annual leave, the GPs were compensated for it – up to six years for those who had contracts, for those who lacked them, two years, as the statutory limitations are different. In total about £300,000 was won back.

It’s highly likely that there are other OOH GPs, and doctors in different circumstances, who are missing out on pay and benefits because they are being wrongly regarded as self-employed, and for those without contracts it can be harder still to get clarity. But expert advice is always at hand for members.

BMA members seeking employment advice contact us.