An out-of-hours GP has successfully argued her ‘worker’ status at an employment tribunal, as part of a legal case against the local health board.
Dr Hannah Dahwa, an out-of-hours GP in Wales, took Cardiff and and Vale University Health Board to tribunal in November in a bid to recoup ‘unpaid accrued holiday pay on termination of her contract’.
The case depended on her employment status with the health board and whether she qualified as a worker under the definition in the Employment Rights Act 1996.
In a judgement handed down last week, Judge James Bromige found that Dr Dahwa was a worker once she attended a shift at the out-of-hours service, since she was ‘obliged to work personally, and was paid in return for that work’.
He therefore ruled that the health board ‘failed to pay’ Dr Dahwa for her annual leave as she was not permitted to take any leave as an OOH GP.
However, the GP’s claims were ultimately dismissed because she presented them ‘beyond the time limits’ prescribed in the relevant working time regulations.
The judge said: ‘It was reasonably practicable for the Claimant to have presented her claim earlier, and therefore the Tribunal has no judication to hear such a claim due to Reg 30(2) WTR 1998.’
GPs working in out-of-hours services, which are in most cases run by Wales’ seven health boards, are currently treated as self-employed for tax and legal purposes.
Last year, Pulse reported that BMA Wales was supporting several out-of-hours GPs in Wales who were being ‘deprived’ of employment rights such as holiday pay.
The union told Pulse that all cases it has been involved in have been settled prior to a full employment hearing, but that ‘the fact that claims are settled speaks volumes about the true employment status of this group of doctors’.
On Dr Dahwa’s case in particular, the union said it is useful that the employment tribunal confirmed worker status, but stressed that it does not set precedent.
BMA Wales told Pulse that employment tribunals are not binding on lower courts, and that each case will be dealt with on its own facts or merits.
Dr Dahwa said that if her claim had been in time, it would have allowed her to ‘claim unpaid backdated holiday pay’.
She told Pulse: ‘It would have also meant if I had continued my consultancy agreement in Cardiff and Vale GPOOH that I would have had the relevant employment rights for workers.
‘This is important for claiming rights to sick pay, maternity pay and whistleblowing protection and protection against discrimination.’
Dr Dahwa said other doctors ‘in a similar position are likely to be owed backdated holiday pay’ but that the only way to claim unpaid holiday pay is by going to employment tribunal which ‘can be time consuming’.
‘Hopefully future employment tribunals can be avoided if another avenue is created such as a national solution to the issue of employment status for doctors in out-of-hours services, including an offer of financial settlement for other doctors affected,’ she added.
A spokesperson for Cardiff and Vale University Health Board said: ‘As discussions are currently ongoing, it would not be appropriate for the Health Board to comment any further at this stage.’
