On the ground: BMA wins holiday pay for GPs
Valuable benefits gained for doctors given wrong employment status
If you have ever been self-employed, you will know the benefits it can bring but also the drawbacks – one of the biggest being the lack of holiday pay.
For someone running their own business, they accept this as a price they have to pay. The problem comes when organisations wrongly label workers as self-employed, which denies them holiday pay and other rights.
Charlotte Jones, an out-of-hours GP, was told by SBUHB (Swansea Bay University Health Board) that she was self-employed. They told her she was ‘inside IR35’, a set of tax rules which apply to those who provide their services through an intermediary. A complete red herring because she didn’t use one. This denied Dr Jones not just her holiday pay but a COVID-related bonus because she was not, in their reckoning, an employee.
BMA assistant secretary Christopher Saunders took up her case. After telling the health board that Dr Jones did not operate through an intermediary, he secured her bonus, but her employment status remained in dispute.
Mr Saunders referred the case to the BMA legal services provider, Capital Law. Its assessment was clear, that Dr Jones was, at a minimum, a ‘worker’. In terms of employment law, there are three legal categories – employed, self-employed, and ‘worker’ – the latter of which attracts many of the rights of the employed, including the right to holiday pay.
Three other doctors who did out-of-hours work for the health board in a similar situation to Dr Jones then contacted the BMA, giving the case greater momentum. Mr Saunders put pressure on the SBUHB, then engaged with a GP lead designated by NHS Wales to review terms and conditions for GPs in the hope of finding an all-Wales solution without recourse to legal action, and finally attempted ACAS early conciliation.
But there was not sufficient progress, so Mr Saunders advised members to start legal proceedings. Four claims went to the employment tribunal, and were later joined together as a collective one. Claims are of course a serious undertaking – involving responding to requests for further information, providing and reviewing the disclosure of documentation and the preparation of witness statements.
SBUHB and the group eventually settled the case amicably. Whilst SBUHB did so without admitting liability, the fact that this claim, like others we support, was settled, in our view speaks volumes about the reality of the true employment status for this group of doctors.
We are mindful that this will continue to affect a large proportion of our membership. Therefore, if you are an out-of-hours GP BMA member, we strongly encourage you to come forward so that we can review your case.
In Wales, we have also encouraged NHS Wales Employers to work with us to find a national solution, and the early indications are promising. In the absence of a national solution, we will be forced to support legal claims, and public time and money will be wasted on the futile defence of them. We want to avoid this.
Dr Jones said: ‘I am very pleased that the BMA and Capital Law took forward an issue that has been going round in circles since at least 2017 and my colleagues and I are very pleased with the outcome.’
She encouraged other BMA members in the same situation to come forward.
