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Question: What is a clear definition of a locum GP with regard to employment law?


20 June 2012

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Answer

There is no clear definition of ‘locum’ for employment law purposes.

Answer

There is no clear definition of ‘locum’ for employment law purposes.

In order to be clear of the practice' s responsibilities to the locum, you must first establish their employment status. Employment status is a complex area of employment law. A locum may during any period of work be an employee, a worker or self-employed. To complicate matters, the employment status of a locum can change over time, for example if their working arrangements develop a regular pattern or they can establish that there is an umbrella contract of employment (and so their employment continues during the periods when they are not working).

It is immaterial if your locum may describe themselves as self-employed, even if they are described as such in their contract and even if they act as self-employed for tax purposes. It is the relationship between your practice and your locum that is relevant.

Employee

In order to be classed as an employee, and attract most employment rights, a locum must be working under a contract of employment. This need not be a written employment contract, as it is the relationship between the locum and your practice that is important.

A contract of employment will be indicated by an agreement for your locum to provide their own work or skill performing a service for you in return for a wage.

Factors that indicate employee status:

1. You must have control over the locum. This can be shown by providing the locum with equipment, which you would maintain (such as medical instruments), or by subjecting them to your rules regarding standards of work.
2. There must be an obligation for you to provide work and an obligation on the locum to accept that work.
3. The locum may be fully integrated into your practice. For example, are they included in benefits schemes that you operate?
4. Your locum may be restricted from working for other practices or employers.
5. A long term or indeterminate engagement may suggest employment.

The main implications of your locum being an employee is that they may not be unfairly dismissed, they are entitled to a statutory redundancy payment and entitled to maternity and other family leave and pay rights. If your locum is an employee, you must carefully consider when terminating your arrangement with the locum whether you have a fair reason to dismiss them and have you acted reasonably in dismissing them.

Workers

Your locum will be considered a worker if she performs work personally for you and your status is not of a client or customer of a profession or business carried on by them. However, unless there is mutuality of obligations i.e. you have to offer them work and they have to perform the work, they cannot generally qualify as a worker.

Workers attract some employment rights, such as, protection against unlawful deductions from wages, national minimum wage, rights under the Working Time Regulations such as holiday pay, and anti-discrimination rights.

Self employed

The self-employed, those who are essentially in business on their own account and have no obligation to render personal service, have few employment rights, although they are protected against discrimination.

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