Ms C Rayner, Counsel. For the 1st v Respondent — 2019

This was a reserved judgment at a preliminary hearing in Ms Kady Mitchell's sex discrimination proceedings against Orton Bushfield Medical Practice and Dr Saber Alemi. The issue for determination was whether Dr Alemi was an employee of the first respondent for the purposes of s.83 Equality Act 2010, and therefore whether the tribunal had jurisdiction to consider the allegations made against him. Employment Judge Ord held that he was an employee within the wider Equality Act definition.

The tribunal found that the arrangement for locum work was made with Dr Alemi personally, not with SA Safe Care Ltd. He approached practices using his personal NHS email address, negotiated rates himself, pursued payment himself, and referred to the invoices as "my invoices". The evidence also showed that the first respondent corresponded only with Dr Alemi, not with the company, and there was no evidence of any prior contractual documentation with SA Safe Care Ltd before he began work.

The tribunal accepted Dr Alemi's evidence that SA Safe Care Ltd was simply a device through which payment was received. It found there was no question of substitution and that the first respondent expected him personally to perform the sessions because it was interested in his CV, skills and experience. On that basis, the tribunal concluded that the contract was one "personally to do work" and that he was an employee of the first respondent for Equality Act purposes.

Because the hearing was confined to the jurisdictional issue, the underlying discrimination allegations were not determined and no remedy was awarded. The judgment referred to authorities including James v London Borough of Greenwich, Tilsom v Alstrom Transport, Jivraj v Hashwani, Windle v Secretary of State for Justice, Bates van Winkelhof v Clyde and Co. LLP, James v Redcats (Brands) Limited and Suhail v Barking Havering & Redbridge University Hospitals NHS Trust in reaching that conclusion.