Ms J Callan of Counsel For the v Mr R Gibson - Solicitor — 2018

At the public preliminary hearing on 22 November 2017, the tribunal held that Dr Narayan was not an employee for the purposes of the Employment Rights Act 1996. It found no mutuality of obligation: she could choose when to work, could take holidays without permission, and the respondent was not obliged to offer work. The later January 2017 Agreement did not govern the relationship because it had not been completed and was only received after the respondent had already decided to cease offering work. On that basis, the unfair dismissal and wrongful dismissal claims were struck out under Rule 37(1)(a) as having no reasonable prospect of success.

The tribunal nevertheless held that she was a worker within section 230(3)(b) ERA 1996 for holiday pay purposes. It relied on the long and regular course of dealing, the prepopulated rotas, the respondent's control over attendance, timing, equipment, audit and home-visit arrangements, and the fact that any substitution was limited to approved doctors from the respondent's panel. The unpaid holiday pay claim was therefore allowed to proceed.

For the Equality Act claims, the tribunal held that Dr Narayan fell within the wider employment definition in section 83(2) so that the race and sex discrimination claims could proceed. It noted that no indirect discrimination claim was pleaded. The direct discrimination allegations were not struck out because they were fact-sensitive, but the tribunal considered they had little reasonable prospect of success and made a deposit order under Rule 39. No final findings were made on discrimination liability at this hearing.