Visit the impressive new state-of-the-art headquarters of Delichon on the edge of the New Forest and one thing jumps out immediately. Virtually everything is purple, from…
Employment status is a constant problem for locum doctors, but this case has hopefully provided some insight into what the tribunal is looking for. The case had a split decision on roughly similar facts so it shows why one engagement was inside and one was outside of IR35. The three main indicators in this case, which will be discussed later, were mutuality of obligation, substitution and the notice period but, what is clear is that a properly drafted contract is essential in proving your employment status.
Mr Mantides performed his services through his personal service company (PSC), George Mantides Limited (GML). In this case GML appealed against the determination for PAYE due of circa £18,610 and Class 1 NI of circa £11,000 for the work undertaken with two hospitals, Royal Berkshire Hospital (RBH) and Medway Maritime Hospital (MMH). GML provided Mr Mantides’ services as a urologist to both hospitals, along with other hospitals simultaneously. As with all IR35 cases, the tribunal considered the hypothetical contract directly between Mr Mantides himself and the hospitals.
With regard to his role, his work for both RBH and MMH consisted of conducting outpatient clinics, procedures and minor operations. At RBH he also undertook a small amount of on-call duty. Save in relation to cancer diagnoses the actions prescribed by Mr Mantides would be taken without further review by other members of the department. The control aspect was not found to be an influencing factor for either engagement due to the level of skill assumed in Mr Mantides position.
For both clinics and operating sessions Mr Mantides would not leave until he had finished the provided list. Sometimes this meant staying beyond the normal end time for a session; sometimes he would leave before that time.
The hospitals used an agency to obtain contractors, and the agency was responsible for confirming the contractors’ qualifications. In the case of MMH only, the agency would be responsible for confirming any substitute sent by GML was suitably qualified. ‘’[GML] may appoint a suitably qualified and skilled individual as a substitute for the temporary contractor (the ‘substitute contractor’) to perform the services on [GML]’s behalf.’’
No formal contract was provided between GML and RBH and so the tribunal relied on other written evidence such as booking confirmation letters. The tribunal could not be satisfied whether substitution would be allowed by RBH, and the wording on the bookings referred specifically to Mr Mantides rather than qualified consultants. “I conclude that any agreement…was for the provision of the services of Mr Mantides and that GML had no right to provide another person to undertake those services in Mr Mantides’ place.”
On RBH, the tribunal concluded that:
- On personal service – the contract would oblige Mr Mantides to provide his own work and skill. It would be a contract for his personal service. This is a pointer towards employment
- On mutuality – whilst there was no obligation to provide work or pay at the end of the contract, there was an absolute obligation on the hospital to provide 10 half day sessions
- Alongside other factors, such as the need to give notice for termination and the length of the engagement, the tribunal concluded that Mr Mantides would have been employed if not for GML
Therefore PAYE and Class 1 NI would apply.
On MMH however, the circumstances differed in the following key ways:
- On personal service – under the notional contract with MMH Mr Mantides would have a right to send a substitute, if that substitute was approved by the agency. This was viewed to be a real right to substitute, and points strongly to self-employment
- On mutuality – the notional contract with MMH would have contained no obligation on MMH to try to provide either 37½ hours or 10 half day sessions in a week. There would not have been even a qualified obligation to provide work
- Only a days’ notice was required to terminate this contract, which was found to be almost illusory. Again this points to self-employment
All of these factors were found to point away from employment and lead the tribunal to find that PAYE and Class 1 NIC would not apply.