Dr J Brink v MSI Reproductive Choices UK — 2021

Dr J Brink alleged unfair dismissal, racial harassment and direct race discrimination. At the hearing he withdrew the claims for a redundancy payment and arrears of pay and did not object to those claims being dismissed. The tribunal identified the unfair dismissal issue as whether he had been employed under a contract of employment from 27 April 2018 and, if so, whether he had two years' continuous employment by the effective date of termination on 17 July 2020.

Applying Ready Mixed Concrete and Autoclenz, the tribunal found that although he personally carried out vasectomy sessions for remuneration and worked regular sessions over more than two years, the parties' true arrangement was one of self-employment. The written consultancy agreement was relevant but not decisive. The tribunal found there was no mutual obligation to offer or accept work, no real contemplation of subcontracting, freedom to decline sessions, no holiday pay, sick pay, pension or fixed hours, and no breach if a session was not covered. It accepted that the Respondent required protocols, training and peer review, but held those features reflected regulation and quality control rather than employment status. The tribunal also noted that the claimant was an experienced doctor who understood self-employment and was content to be taxed on that basis.

The tribunal found that the relationship began on 27 April 2018 when the claimant signed the agreement, but it concluded he was never the Respondent's employee at any point. The unfair dismissal claim therefore failed and was dismissed, and no remedy was awarded.