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Can Workers’ Rights Coexist With Statutory Independence?

Public bodies are sometimes required to engage independent individuals to oversee their activities, but does the very fact of their independence preclude them from all forms of employment protection? In a guideline decision, an Employment Tribunal (ET) answered that question with a resounding ‘no’.

The case concerned a woman who was engaged as an associate hospital manager (AHM) by an NHS trust. Amongst the important statutory functions fulfilled by AHMs is overseeing the discharge of patients detained under the Mental Health Act 1983 (MHA). They are paid session fees and travel expenses, but do not receive a salary. The independence of their role is buttressed by Section 23(6) of the MHA, which expressly prohibits employees or executive officers of an NHS trust from performing the functions of an AHM in relation to that trust.

In lodging ET proceedings against the trust, alleging victimisation and detrimental treatment for whistleblowing, the woman accepted that she was not an employee in the sense of being employed under a contract of employment. She argued, however, that she enjoyed the protected status of a worker under the Employment Rights Act 1996 and that she was in employment under a contract personally to do work for the purposes of the Equality Act 2010. Pointing to her independent status, the trust did not accept that she was a contracted worker with workers’ rights.

Preferring the woman’s arguments, the ET found that the statutory prohibition in Section 23(6) of the MHA, whilst preventing her from being an employee of the trust, did not exclude her from all employment rights or protections. Her engagement was more than honorary and was subject to terms and conditions imposed by the trust.

There was an intention to create legal relations and her relationship with the trust did not lack subordination or control. The independence of her role was not undermined by affording her workers’ rights or protection as an employee in the broader sense under the 2010 Act. The ET’s ruling on the preliminary issue concerning her status opened the way for her to pursue her complaints to a full hearing.

Published in
15 May 2022
Last Updated
15 November 2022