Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 116/01FET

CLAIMANT: Dr C Wasson

RESPONDENTS: 1. Eastern Health and Social Services Board

2. General Medical Council

PRE-HEARING REVIEW

The unanimous decision of the Tribunal is that:-

1. The claimant is not a contract worker as envisaged in Article 20 of the Fair Employment and Treatment (Northern Ireland) Order 1998; and
2. The first named respondent is not a person or organisation with power to confer a qualification on the claimant as envisaged by Article 25 of the Fair Employment and Treatment (Northern Ireland) Order 1998.

Appearances:

The claimant represented himself at this hearing and gave evidence.

The first respondent was represented by Mr A Devlin, Barrister-at-Law, instructed by the Director of Legal Services of the Central Services Agency.

The Tribunal heard evidence from the claimant and Dr K Booth, who is the first respondent's Administrative Medical Officer for General Practice.

3. This matter came before the Tribunal by way of a pre-hearing review and was heard by a full Tribunal at the request of the claimant and by order of the chairman who considered that one or more substantive issues of fact were likely to be determined at the pre-hearing review and that it would be desirable for the pre-hearing review to be conducted by a Tribunal rather than a chairman.
4. The issues for determination by the Tribunal were:-

(1) Whether the claimant was a contract worker contracted by the first respondent within the ambit of Article 20 of the Fair Employment and Treatment (Northern Ireland) Order 1998; and

(2) Whether the first respondent is a person who has power to confer a qualification on the claimant within the ambit of Article 25 of the Fair Employment and Treatment (Northern Ireland) Order 1998.

The Facts

5. The claimant graduated from Queen's University Belfast Medical School in 1981 as a doctor. He worked as a doctor in hospitals for a number of years and then underwent training in order to become a General Medical Practitioner. He qualified as a General Medical Practitioner in 1989 when he was awarded a certificate by the United Kingdom Joint Committee for Vocational Training. The claimant then worked for a number of years as a locum, both as a General Practitioner and in hospital.
6. In 1994 he entered a partnership with two other doctors. He applied to be included on the first named respondent's Medical List which was a requirement for all General Practitioners who practised on their own account, either in partnership or as sole practitioners rather than as assistants or locums. He was entered on the Medical List and obtained the first respondent's approval for his proposals for being available to his patients and for discharging his continuing responsibility to them. The claimant's relationship with his partners terminated in 1997 and he successfully applied to the first respondent to become a sole practitioner running his own practice in 1997. The claimant's relationship with the first respondent was at all times governed by statute and he was never an employee of the first respondent.
7. From the time of his first qualifying as a fully registered medical practitioner, the claimant had a cipher number allocated to him personally by the first respondent. Separate cipher numbers were also allocated to each practice and so the claimant as a sole practitioner had a separate cipher number for that practice.
8. In November 2000 the claimant was suspended on a precautionary basis by the Interim Orders Committee of the General Medical Council for 18 months. He could therefore not work as a General Practitioner for that period.
9. After the claimant was suspended by the General Medical Council there was correspondence between the legal advisors for the claimant and the first respondent with regard to payment to the claimant during the suspension. The claimant's legal advisors by letter dated 12 December 2000 (attached hereto) wrote that:-

"the suspension of Dr Wasson by the General Medical Council has not terminated his arrangement for the provision of general medical services to his patients."

By letter dated 14 December 2000 (attached hereto) the first respondent's legal advisors replied saying:-

"The question whether the suspension of Dr Wasson by the general medical practitioner has terminated his "arrangements" with the Board for the provision of general medical services is a moot one. Your contention about this matter is not accepted. Even if it were correct, these would, in the light of the suspension, be paper arrangements only, themselves suspended."

10. In the event, the claimant remained on the first respondent's Medical List and was not removed from it until 2003. He was also paid by the first respondent for part of the period of his suspension.
11. The applicable law is contained in Articles 2, 20 and 25 of the Fair Employment and Treatment (Northern Ireland) Order 1998.

Issue 1: Whether the claimant was a contract worker contracted by the first respondent within the ambit of Article 20 of the Fair Employment and Treatment (Northern Ireland) Order 1998.

12. Article 20 of the Fair Employment and Treatment (Northern Ireland) Order 1998 provides:-

Contract Workers

(1) This Article applies to any work for a person ("the principal") which is available to be done by individuals ("contract workers") –

(a) who are employed not by the principal himself but by another person, who supplies them under a contract made with the principal; and

(b) who, if they were instead employed by the principal to do that work, would be in his employment in Northern Ireland.

Article 2(2) of the Fair Employment and Treatment (Northern Ireland) Order 1998 defines employment as:-

"employment" (except in Part VII) means employment under

(a) a contract of service or apprenticeship; or

(b) a contract personally to execute any work or labour.

13. The claimant's case was that he was employed by himself as the sole practitioner and was supplied by his practice to the first respondent as a contract worker.
14. The first named respondent's case was that the claimant's relationship with his practice could have nothing to do with an employment relationship because the practice could not be a separate legal entity from the claimant. Mr Devlin also pointed out that there was no employment relationship between the first respondent and the claimant, and that this had been accepted by the claimant under cross-examination. Mr Devlin also pointed out that the claimant could not bring himself within the definition of a contract worker, which was designed to deal with cases where an employer lends a worker to another employer, such as temporary office workers or sub-contractors.
15. The Tribunal accepted that the claimant could not be employed by himself as the sole practitioner in the practice, when they were one and the same person, and did not have separate legal identities. The Tribunal did not accept the claimant's argument that because he had separate cipher numbers for himself as an individual doctor and for his practice as a sole practitioner that this made him a separate legal entity, which would entitle him to regard himself as employed by himself as a sole practitioner. The Tribunal was satisfied that the claimant did not come within the definition of employment as regards himself and his own practice as a sole practitioner as set out in Article 2(2) of the Fair Employment and Treatment (Northern Ireland) Order 1998.
16. The Tribunal also accepted that the claimant was not employed by the first respondent in that he had neither a contract of service nor a contract personally to execute any work or labour. His relationship with the Board was not one of "employment" as defined in Article 2(2) of the Fair Employment and Treatment (Northern Ireland) Order 1998. Instead, his relationship with the first respondent was established under the statutory framework as set out in the Terms of Service for Doctors in General Practice as provided for in the Health and Personal Social Services (General Medical and Pharmaceutical Services) Regulations (Northern Ireland) 1973 as amended. This is well established in the cases to which Mr Devlin referred the Tribunal, being Wadi -v- Cornwall and Isles of Scilly Family Practitioner Committee and Another 1985 ICR at 492; Ealing, Hammersmith and Hounslow Family Health Services Authority -v- Shukla 1993 ICR 7110; David John -v- North Essex Health Authority; and Tattari -v- Private Patients Plan Limited [1997] IRLR 586 where it is established that the relationship between a General Practitioner and the equivalent body of the first respondent in England did not constitute employment. The Tribunal also noted that the claimant himself accepted under cross-examination that he was not employed by the first respondent although he seemed to move away from that concession in some of his contentions.
17. Having accepted that there was not an employment relationship between the claimant and himself as a sole practitioner, nor between himself and the first respondent, the Tribunal accepted that the claimant could not bring himself within the definition of a contract worker as envisaged by Article 20 of the Fair Employment and Treatment (Northern Ireland) Order 1998.

Issue 2: Whether the first respondent is a person who has power to confer a qualification on the claimant within the ambit of Article 25 of the Fair Employment and Treatment (Northern Ireland) Order 1998.

18. Article 25 of the Fair Employment and Treatment (Northern Ireland) Order 1998 provides:-

Persons with power to confer qualifications

(1) It is unlawful for a person who has power to confer on another a qualification which is needed for, or facilitates, his engagement in employment in any capacity, or in a particular employment or occupation, to discriminate against him –

(a) by refusing or deliberately omitting to confer that qualification on him on his application; or

(b) in the terms on which the person is prepared to confer it; or

(c) by withdrawing it from him or varying the terms on which he holds it.

19. The claimant's case under Article 25 of the Fair Employment and Treatment (Northern Ireland) Order 1998 was that:-

(1) His inclusion on the first respondent's Medical List was a qualification which was needed for or facilitated his employment or occupation.

(2) The first respondent withdrew his right to be on the Medical List at the time he was suspended by the General Medical Council and this withdrawal amounted to a withdrawal or variation of the terms on which he held that qualification.

(3) The withdrawal of his name from the Medical List was evidenced by the paragraph in the letter dated 14 December 2000 from the first respondent's legal advisors referred to at paragraph 7 of this decision.

(4) There was a qualitative difference between the services supplied by a doctor as a locum or assistant General Practitioner and that supplied by a practitioner on the Medical List who was responsible for the ongoing care of patients.

20. The first respondent's contentions in essence were that:-

(1) The claimant's inclusion on the Medical List was not a qualification as envisaged in Article 25 in that it was not needed for or facilitated his employment or occupation as a General Practitioner.

(2) He was not employed by the first respondent in that his relationship with the Board was based on statute rather than a contract.

(3) The first respondent had not removed him from the Medical List at the time about which he complains and he remained on the Medical List until November 2003.

(4) He could still follow his occupation of being a General Practitioner as a locum or assistant whether or not he was on the first respondent's Medical List.

(5) The letter dated 14 December 2000 did not make any reference to the Medical List and should be read in the context of the surrounding correspondence which was about payment to the claimant during his suspension by the General Medical Council.

21. The Tribunal accepted that entry onto the first respondent's Medical List was not a qualification which was either needed for or facilitated the claimant's occupation as a General Practitioner. He could still have worked in his occupation as a General Practitioner as a locum or as an assistant whether he was on or off the first respondent's Medical List if he had not been suspended by the General Medical Council.
22. The Tribunal also accepted that the first respondent did not remove the claimant from its Medical List in 2000. He was not in fact removed from the Medical List until 2003. The tribunal did not accept the claimant's interpretation of the 14 December 2000 letter from the first respondent's legal advisors as removing him from the Medical List. Had that been the intention the tribunal would have expected to see a formal notification of the claimant's removal from the Medical List. In any event, the reference in that letter to the termination of arrangements was referred to as a moot point and could not on any normal understanding be interpreted as amounting to removal from the Medical List.
23. The Tribunal therefore accepted that the first respondent is not a body with the power to confer a qualification which is needed for or facilitates engagement either in a particular employment or occupation and so the claimant does not come within the ambit of Article 25 of the Fair Employment and Treatment (Northern Ireland) Order 1998.
24. Taking all these matters into account, the Tribunal is satisfied that the claimant does not come within the employment provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998 and neither does he come within Articles 20 or 25 of that Order.
25. There remains the claimant's complaint under Article 35 of the Fair Employment and Treatment (Northern Ireland) Order 1998 to be determined as against both the first and second named respondents set out above. A Case Management Discussion will be arranged in due course to progress that claim to hearing.

Chairman:____________________________________

Date and place of hearing: 25 April 2005, 27 and 28 June 2005, 2 September 2005

Date issued to the parties: