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Tribunal erred when applying worker test

In a recent case, Sejpal v Rodericks Dental Ltd the Employment Appeal Tribunal held that an employment tribunal failed to correctly apply the statutory test for worker status when it concluded that a dentist was not a worker.

Mrs Sejpal worked as a dentist in a practice owned by Rodericks Dental Ltd (RDL) from August 2009. Her contract had a substitution clause where Mrs Sejpal was to use her best endeavours to arrange a locum in the event of her failure to “utilise the facilities for a continuous period of more than 14 days”. If she failed to make such arrangements, then RDL had the authority to arrange a locum on her behalf. Any locum had to be acceptable to RDL.

Mrs Sejpal went on maternity leave in 2018, and during this period RDL announced the closure of the practice where Mrs Sejpal worked. Mrs Sejpal alleged that her contract was terminated while others were redeployed and brought a claim in the employment tribunal alleging that the termination of her contract was discrimination because of pregnancy or maternity.

At a preliminary hearing, an employment tribunal decided that Mrs Sejpal was not a “worker” nor an “employee” as she was not a person employed under a contract personally to do work. As a result, the employment tribunal dismissed her claims.

On appeal, it was held that the tribunal had failed to correctly apply the statutory test for worker status when it concluded that Mrs Sejpal was not a worker. It was noted that the starting point when determining such cases should be whether there was a contract, they should then consider the true nature of the agreement.

The locum clause relied upon was not an unfettered right of substitution – due to the requirement that any locum be acceptable to RDL. As a result, the contact required some personal service.

The appeal was therefore allowed.