Dr K Connaughton v Greater Glasgow Health Board: 4108343/2021

EMPLOYMENT TRIBUNALS (SCOTLAND) Case Number: 4108343/2021 5 Preliminary hearing held by video in Glasgow on 15, 16, 17 and 22 May 2023 Employment Judge M Whitcombe 10 Dr K Connaughton Claimant Represented by Mr D Pansesar KC (Counsel) 15 Greater Glasgow Health Board Respondent 20 Represented by: Mr B Napier KC (Counsel) 25 JUDGMENT ON A PRELIMINARY ISSUE The judgment of the Tribunal is that the claimant was not the respondent’s worker for the purposes of section 230 of the Employment Rights Act 1996, regulation 2 of 30 the Working Time Regulations 1998 or the Working Time Directive. Case No.: 4108343/2021 Page 2 REASONS Introduction and background 5 1. The claimant is a general medical practitioner (“GP”) practising from the Bridgeton Health Centre in the east end of Glasgow. Several GP practices are based at that health centre. The claimant is a partner in one of them, a partnership practice currently known as “Drs Connaughton and Sudomir”. 10 2. The respondent is the largest Health Board in the UK and is commonly known as “NHS Greater Glasgow & Clyde”. It has a statutory duty to provide primary medical services in the Greater Glasgow and Clyde area. The claim 15 3. In a claim form (ET1) received by the Tribunal on 17 March 2021, the claimant sought compensation for leave taken on an unpaid basis in the period from 2011 until 2020, compensation for accrued but untaken entitlement to paid annual leave carried over from year to year, and a 20 declaration of his entitlement to future paid leave. The claim is brought under the Working Time Regulations 1998 (“WTR”), the EU Directive 2003/88/EC on working time (“WTD”) and under section 13 of the Employment Rights Act 1996. 25 4. In a response (ET3) received by the Tribunal on 13 April 2021, the respondent defends each of those complaints on the basis that the claimant lacks the necessary employment status to bring them. The respondent argues that the claimant is not its “worker”, whether as a matter of domestic law or for the purposes of the WTD, and that the claimant therefore has no 30 right to paid annual leave under that legislation. The preliminary issue Case No.: 4108343/2021 Page 3 5. This judgment deals with the critical preliminary issue of whether the claimant is and was the respondent’s “worker” for the purposes of the above legislation. 5 Brief procedural history 6. This hearing was originally listed as a video hearing while the pandemic was ongoing. I decided that it would remain a video hearing because it reduced cost and inconvenience to the claimant’s legal team. The respondent had a 10 slight preference for a hearing in person but put it no higher than that. 7. The first case management hearing took place on 25 May 2021. Much of the time since then has been spent resolving several complicated disputes about the disclosure of voluminous documents from Scottish Ministers and 15 the BMA. Since many of those disputes required an employment judge to read documents in respect of which privilege was claimed, they were resolved by EJ Kemp so that I could approach this hearing without any knowledge of the documents which he ultimately found to be privileged. 20 Evidence 8. I was provided with a collection of documentary evidence running to 4758 pages and a few additional documents during the hearing. Happily, all were in a digital format which was also used by the witnesses and the 25 representatives. The bundle of 37 authorities ran to 835 pages and was also in digital format. That was much more manageable than the 11 lever arch files that would have been required if the hearing had been conducted with printed documents and I am extremely grateful for the way in which they were prepared and organised. 30 9. I heard from the following witnesses, all of whom gave evidence on oath or affirmation. They gave their evidence in chief primarily by reference to Case No.: 4108343/2021 Page 4 written witness statements. All were cross-examined. a. The claimant, Dr Kevin Connaughton. b. Ms Fiona Duff, Senior Adviser to the Primary Care Directorate, Scottish Government. For more than 6 years she has advised the 5 Scottish Government on Primary Care and Practice Management and the day to day running of General Practice. Before that, she was for 15 years the Primary Care Manager for NHS Highland and before that a GP Practice Manager or Fund Holding Manager for 11 years. c. Mr Michael Taylor, Head of GP Contract Operations at the Scottish 10 Government, responsible for “business as usual” elements of the 2018 General Medical Services (GMS) contract. He was involved in the negotiation of the terms of that contract. d. Ms Lorna Kelly, currently National Strategic Lead for Primary Care at Health and Social Care Scotland, prior to that Interim Director of 15 Primary Care at the respondent Health Board for about 18 months, and before that Head of Primary Care Support and Development for about 4 years from 2016. e. Dr John Nugent, now retired but formerly Senior Medical Officer and Clinical Director of the Primary Care Division of the Scottish 20 Government. He had a key role in negotiations with the BMA on behalf of the Scottish Government regarding the terms of what became the 2018 General Medical Services (GMS) contract. He also spent 25 years as a partner in a GP partnership in Drumchapel from 1989 until 2014 before undertaking roles as Associate Medical 25 Director and Clinical Director for the respondent Health Board. 10. The parties also provided an extremely helpful statement of agreed facts. 11. I found all of the witnesses to be honest and sincere. They all reflected 30 carefully on the questions they were asked and none of them were evasive in any way. The claimant’s perception of his obligations and the respondent’s actions did not always tally with the contemporaneous Case No.: 4108343/2021 Page 5 documentary evidence, but that is not a criticism of his honesty. I am sure that his evidence faithfully expressed the reality of the situation as he saw it. The facts 12. Many relevant facts were either agreed, or else not actively disputed. Where 5 facts were disputed I made my findings on the “balance of probabilities”, in other words a “more likely than not” basis. If I concluded that a fact was more likely to be true than untrue, then it was treated as being true for the purposes of my decision. 10 Health Boards - statutory background 13. Under the National Health Service (Scotland) Act 1947 and The National Health Service (Scotland) Act 1978 it is and has been the duty of every Health Board (or predecessor organisation) to promote the improvement of 15 the physical and mental health of the people of Scotland. Further, those statutes required Health Boards and their predecessors to provide or secure primary medical services to patients in their areas. That can be done by making arrangements with medical practitioners. See originally section 34 of the 1947 Act and now section 2C of the 1978 Act. 20 14. The respondent, Greater Glasgow Health Board (“GGHB”), is a statutory body established by order made under section 2(1)(a) of the NHS Scotland Act 1978 as amended by the Primary Medical Services (Scotland) Act 2004. The functions of Health Boards in relation to primary medical services are 25 set out in section 2C(1) of the 1978 Act, as amended. Every Health Board: a. must, to the extent that they consider necessary to meet all reasonable requirements, provide or secure the provision of primary medical services as respects their area; and b. may, to such extent, provide or secure the provision of primary 30 medical services as respects the area of another Health Board. Case No.: 4108343/2021 Page 6 15. For the purpose of securing the provision of primary medical services a Health Board may make such arrangements for the provision of the services as they think fit and may make contractual arrangements with any person. 16. The file of documents contained extracts from Hansard dating from 1948 5 but I was not referred to any of them and I make no findings in relation to them. 1990s 10 17. In about 1990 arrangements were made between Health Boards and individual GPs to provide general medical services. They were contained within the NHS (General Medical and Pharmaceutical Services) (Scotland) Regulations 1974, as amended. Schedule 1 set out the terms of service for doctors, covering a variety of matters relating to the provision of medical 15 services, including the people for whose treatment the doctor was responsible, the services which should be rendered and the required availability to patients. 18. The terms of service were later subject to the NHS (General Medical 20 Services) (Scotland) Regulations 1995 under which arrangements for GPs to provide services within a Health Board area were made directly between the Health Boards and individual GPs. That entailed an application process for admission to the list of qualified practitioners for the Health Board where that doctor intended to practise. It was then known as the “medical list” and 25 is now known as the “performers list”. Each Health Board holds its own performers list. 19. Arrangements were put in place under the “Scottish Office Home and Health Department National Health Service General Medical Services Statement of 30 Fees and Allowances Payable to General Medical Practitioners in Scotland from 1 April 1990”. They were known colloquially, and more briefly, as “the Red Book”. The Red Book was prepared under the NHS (General Medical Case No.: 4108343/2021 Page 7 and Pharmaceutical Services) (Scotland) Regulations 1974 as amended, and subsequently the NHS (General Medical Services) (Scotland) Regulations 1995. It was a small loose-leaf binder. 20. Funding for practices came from the Scottish Office Department of Health to 5 GP Practices via the Health Board. It was an unlimited government budget and did not come from Health Board funding. 21. The Red Book set out how many partners a practice could have. The...