Are your bank workers actually employees by another name? The EAT issues a timely reminder.
The issue of whether a bank worker is self employed or an employee is a thorny one. Whilst the title given in the relevant documents will be looked at by tribunals in determining the nature of the relationship, three core elements which denote an employment relationship will also be addressed:
- an obligation on the person to provide the work personally
- mutuality of obligation between the employer and employee
- some control by the employer over the employee
The EAT judgment in the recent case of Quashie v Stringfellows Restaurants Ltd will be of interest to NHS organisations in terms of their bank staff.
The facts and the EAT decision
The case involved a lap dancer who claimed unfair dismissal after she was dismissed for alleged drug dealing at a Stringfellows venue. In response to the claim Stringfellows argued that Miss Quashie was not an employee but was instead self employed and so she was unable to claim unfair dismissal.
The EAT found that Miss Quashie was an employee on the basis that there was mutuality of obligation between her as a dancer and the club in terms of the fact that she was obliged to work on the nights she was on the rota and the club had to provide her with an opportunity on those nights to earn money. The EAT also found that Stringfellows controlled the way in which Miss Quashie carried out her activities.
The EAT found that the short gaps between the nights Miss Quashie worked constituted periods of employment so that there was an umbrella contract of employment. In coming to this conclusion the EAT was influenced by the regular shift pattern which emerged over the 80 weeks which Miss Quashie worked at the club.
What to take away
For trusts using bank workers this is an important point to take on board. If particular workers are used to provide services on a regular basis and they can show the relevant elements of control and mutuality of obligation, there is a risk that there will be an umbrella contract so as to link the separate periods of engagement and provide the worker with the necessary continuity of employment to attract employment protection.
To guard against the risk that a bank worker becomes an employee it would be advisable to avoid using the same individuals in any fixed or regular pattern and to have sufficient breaks between each period of engagement. If there are bank staff registrants who have been working regular shifts, steps can be taken to break that pattern of work, in order to lessen the chance that claims of a substantive employment relationship will be made.
If the pattern of work cannot be broken, because of workforce issues, recruitment restrictions or clinical requirements, trusts should at least recognise the issue that exists and take steps to regularise the documents and relationship with the employee. Regular bank worker audits can also assist to determine the fact and scope of the issue that may exist.
Given the transition of NHS staff which is imminent under the government's reforms to the NHS, it would be advisable to carry out a review of bank staff generally. We recommend that trusts look at their current bank registrants to confirm who has provided bank services during a specific period of time (perhaps three or six months) and that any person who has not been asked to, or worked a bank shift during that time receives notice that their bank registration had come to an end. This kind of process is usually provided for within the bank members' handbook or terms of registration. As the time for the transition approaches, this same audit can be done on a monthly basis to ensure that the bank roster is as up to date as possible.
If you would like further information on this subject, please contact John Brookes, Jacqui Atkinson or Andrew Davidson.