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THE INDUSTRIAL TRIBUNALS

CASE REF NO: 2428/01

APPLICANT: Dr Janet Aileen Hall

RESPONDENT: Social Security Agency

DECISION

The unanimous decision of the tribunal is that the applicant is not a worker within the meaning of article 3(3) of the Employment Rights (NI) Order 1996 or article 2(2) of the Working Time Regulations (NI) 1998.

APPEARANCES:

APPLICANT: The applicant appeared without representation.

RESPONDENT: Mr S Shaw, QC, appeared for the respondent instructed by the Departmental Solicitor's Office.

In a decision issued on 29 May 2002, a tribunal ruled that Dr Hall was not employed under a contract of service with the respondent but left open the question as to whether she fell within the definition of worker contained in the Employment Rights Order and the Working Time Regulations. The definition, which is identical in each provision, is as follows -

"Worker means an individual who has entered into or works under (or, where the employment has ceased, worked under) -

(a) a contract of service, or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual:

And any reference to a workers contract shall be construed accordingly."

In light of the decision of the 29 May 2002, this tribunal is concerned only with paragraph (b).

As determined in the decision of 29 May 2002, the applicant was appointed by the respondent to a panel of adjudicating medical practitioners for a fixed renewable term and was paid by the session hours worked. Her function originally was to assess the percentage disability suffered by claimants in relation to industrial injury. In or about 1992, the role became an advisory one with the applicant preparing a report/ recommendation for consideration by an official who made the decision. The applicant was termed a sessional doctor.

Clearly the applicant worked under an express contract by which she undertook to carry out personally work or services for the respondent, the other party to the contract. The only matters in dispute are whether the respondent, as the other party to the contract, held the status of client to any profession or business undertaking carried out by the applicant. Clearly the applicant is a member of a profession and she works for the respondent in her professional capacity.

The definition of worker as contained in Regulation 2(1) of the Working Time Regulations 1998 - in identical terms to Regulation 2(2) of the Working Time Regulations (NI) 1998 - was considered by the Employment Appeal Tribunal in Byrne Brothers (Fomwork) Ltd -v- Baird [2002] IRLR 96 in relation to 'business undertaking' but not unfortunately in relation to profession. The Tribunal concluded that the structure of the Regulation was that the definition extended prima facie to all contracts to perform personally any work or services but is then made subject to an exception relating to the carrying on of a 'business undertaking'. According to the Tribunal, the intention behind the Regulation was plainly to create an intermediate class of protected worker who, on the one hand, is not an employee but, on the other hand, cannot in some narrower sense be regarded as carrying on a business. The policy behind the inclusion of limb (b) can only have been to extend the protection accorded by the Working Time Regulations to workers who are in the same need of that type of protection as employees in the strict sense - workers, that is, who are viewed as liable, whatever their formal employment status, to be required to work excessive hours. The reason why employees were thought to need protection is that they are in a subordinate and dependent position vis-à-vis their employers. The purpose behind Regulation 2(1)(b) was to extend protection to workers who are, substantially and economically, in the same position. Thus, the Tribunal concluded, the essence of the intended distinction must be between, on the one hand, workers whose degree of dependence is essentially the same as that of employees and, on the other, contractors who have a sufficiently arms length and independent position to be treated as being able to took after themselves in the relevant respects. The applicant 'worker' in this case was a self-employed building trade worker who worked exclusively for the respondent at one site for a significant and indefinite period.

Whatever ambiguity there may be about the words 'business undertaking', there does not seem to be any about 'client or customers of any profession ………. carried on by the individual'. It is possible to interpret those words to exclude protection from a member of a profession dealing with a client or customer without opening a gulf between the terms 'profession' and 'business undertaking' so as to create inconsistency. Professionals such as doctors carrying out work for the Agency are not in the same need of protection as others who are not employees. But whether that be true or not, there is no legal ambiguity in interpreting the word profession which is unqualified in any way. [It is interesting to note that the Court of Appeal in Perceval-Price and Others -v- Department of Economic Development & Others [2000] IRLR 380 in the context of Article 119 of the EC Treaty the Equal Pay Directive and the Equal Treatment Directive, held that the term 'worker', in the context of community law, must be interpreted broadly and in a purposive fashion so as to include within the definition persons who are engaged in a relationship which is broadly that of employment rather than being self-employed or independent contractors.] It is a moot point - but not one which was canvassed before this tribunal - whether a professional person in the position of the applicant could fall within the 'subordinate and dependent position' adopted in Byrne Brothers. It is easier to see why, in discrimination matters, the term 'worker' would require a purposive interpretation and it is also easier to see why for someone such as a 'self-employed' building trade operative a purposive interpretation must be necessary. However the exclusion of protection for persons who are professionals is unambiguous. In the opinion of the tribunal, to interpret it other than in the way I have interpreted it would require different wording and that is not permissible by way of interpretation.

Finally is the respondent agency a client/customer of any profession carried on by the applicant? Client is defined in Collins English Dictionary 1995 as a person, company, etc. that seeks the advice of a professional man or woman. The respondent, on an ongoing basis, seeks the advice of the applicant on matters within her professional competence and the applicant provides that advice for financial reward. There is no other basis to the relationship between them. Therefore, although the trend in cases where the meaning of worker has had to be decided is to afford a broad and purposive interpretation, on the clear and unambiguous definition set out in the Employment Rights Order and the Working Time Regulations and on the facts of the case, I find that the applicant is not a worker within the meaning of those definitions.

____________________________________

J E MAGUIRE

President

Date and place of hearing: 29 November 2002, Belfast

Date decision recorded in register and issued to parties: