Contract for sessional GPs was declared void due to uncertainty and the claimants were successful in their holiday pay claim.  

The claimants are GPs. The respondent provides an out of hours service which is staffed by salaried and sessional GPs.  Both claimants worked as sessional GPs.  Up until April 2018 the sessional GPs were treated as self-employed and were paid 20% more per hour than salaried GPs. HMRC ruled that sessional GPs were employees for the purposes of NIC and income tax. This led to a new contract in April 2018.  The differential remained in pay and no payment was made for sessional GPs in respect of holiday pay. The claimants argue that there is a failure to pay holiday pay under the Working Time Regulations (NI) 2016.   

The respondent argued that the claimants were only employed for tax purposes, but they remained self-employed. This did not align with the factual and contractual nature of the work. For example, the sessional and salaried GPs were treated the same and were doing the same work. The contract made it clear that the disciplinary procedures could apply to sessional GPs and that sessional GPs were also superannuable. As a result, it was held that the sessional GPs were at all material times workers or employees for the purpose of the legislation.  

The contract governing the relationship for sessional GPs was described by the Tribunal as ‘an absolute mess’ and that the Trust should be embarrassed that it was the result of a process lasting about a year.  For example, in parts it refers to the sessional GPs as workers, yet the respondent argues that they are self-employed.  Additionally, the contract outlines that there is to be an annual leave allowance calculated and paid on the basis of 12.5% incorporated into each of the hourly rates of pay.   This annual leave allowance was never identified, checked or calculated.  The Tribunal outlined that rolled-up holiday had been unlawful for some considerable time, yet it did not seem to trouble the respondent unduly.  The contract again caused issues by having a section relating to annual leave allowance paid based upon a 12-week period due to the variable nature of the shifts.  The Tribunal made it very clear that it could not be possible to have rolled-up holiday pay and a payment in arrears.

Bearing in mind the problems noted with the contract it was declared void for uncertainty.  Additionally, the Tribunal found that the claimants were workers and their claim for holiday pay was upheld.  A separate remedy hearing will be held. 

The importance of ensuring consistency and certainty throughout a contractual document is made abundantly clear here.   The Tribunal found it very difficult to see any clarity in the contractual document and their frustration with the Tribunal was made clear within this judgment.  When reviewing such contracts one should be mindful of the challenges that could be raised relating to the sections and being mindful that each word within a legal document may have a meaning which changes the nature of the agreement.  

NI Tribunal decisions are available on the OITFET website.