Complainant

Respondent

Parties

Phillip  Sheeran-Purcell

Carlow Emergency Doctors on Call Limited

Representatives

Self-represented

IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00066662-001

13/10/2024

The complainant is a doctor and has worked for many years for the respondent. He works after-hours on a roster system for 100 hours per year. He claims that he has not been provided with a statement in writing of his terms of employment, as per the Terms of Employment (Information) Act, 1994.

Summary of Complainant’s Evidence

The complainant, Dr Sheeran-Purcell, outlined his work history with the respondent. He said that he has his own GP Practice. When he works with the respondent, he is employed on different terms and therefore assumes he is an employee.

The after-hours service commenced in Carlow and expanded to include Wicklow and other counties. The respondent provides a roster and the complainant carries out his shifts accordingly. Due to Covid, from 2020, the payment method changed for medical card holders. These arrangements have continued since then. He receives an hourly payment for treating medical card patients and his fees for private patients are re-imbursed to him by the respondent. The system prior to Covid was on a paper based system and he was refunded a payment per medical card patient.

He submits that this arrangement cannot be described as self-employment as his earnings are fixed and he works the rosters assigned. The respondent prepares the rosters and although he can ask a colleague to cover, this rarely happens. He treats patients in premises provided by the respondent who also provide the equipment. He occasionally does house calls. The respondent provides reception staff, drivers, and some nurses. The reception staff handle payments from private patients.

The complainant said he has not received a statement of terms of employment from the respondent and does not know his retirement date. The earnings he receives from the respondent go into the normal earnings of his General Practice. His accountant deals with his tax returns.

He said he has no control over the number of patients he can treat when on evening shifts with the respondent. He questioned how the method of payment to an hourly rate changed in 2020 without any input from himself or other doctors.

Under cross-examination by the respondent representative, it was put to him that the respondent needs to roster doctors for continuity of service and that doctors pay a subscription to ensure week-ends are covered. He replied that he had queried rosters in the past.

It was put to him that the Board of Directors is made up of nominated doctors who run the medical aspects of the service. He replied that there was a lack of clarity on his terms and conditions.

He was asked about the Health Act 1970 which provides for the availability of a general practice to patients. He replied that the legislation was outdated.

It was submitted by the respondent representative that they were not the employer and that the complainant did not work under a contract with them. The representative put into evidence a contract of July 2023 between the HSE, IMO and the Department of Health. It was submitted that GP’s are members of the respondent in accordance with the Caredoc Articles of Association/Constitution and doctors pay a subscription on a monthly basis.

The representative referred to the five-step framework as per Revenue Commissioners v. Karshan [2023] IESC 24 and the recently updated ‘Code of Practice on Determining Employment Status.’

Summary of Ms Curran’s Evidence

Ms Curran, General Manager, explained the extension of the service from Carlow to other counties. She described it as a GP co-operative, with 19 Directors who are doctors from local areas on a Board of Directors. The rosters are now computerised and each doctor works up to 100 hours per year.  If cover is available doctors can opt to take breaks by providing cover from their own practice or can owe time.

If a doctor cannot find a replacement it is covered by an associate member doctor, if available. She said that from her knowledge, retirement from the after-hours service was always 65 years of age.

She explained that each member doctor pays a subscription to cover the red-eye shift. Doctors are refunded the full amount paid by the private patients treated. These payments are administered through the respondent system which is efficient as only one card machine is required. If private patient fees are outstanding, it is up to the doctor to follow up themselves.

In 2020, the payment changed to a grant payment for medical card patients. The agreement was approved by the Board of Directors. The new system was required as patients were treated virtually and there was no mechanism for administration of paperwork. The grant system is based on activity in 2019. These developments were important for after-hours care to continue to operate efficiently. She said the grant system has worked well. Post Covid, the Board of Directors agreed in most areas to continue with the grant system.

She said funding for reception staff and drivers along with infrastructure is through the HSE. All doctors are required to be indemnified and checks for compliance are made.

Under cross-examination by the complainant, it was clarified that 65 years of age was the normal retirement age. Ms Curran was asked about information on the terms of employment and where to locate this information. It was clarified that member doctors can raise any issues with the Directors. The complainant suggested a handbook would be useful. It was confirmed that this could be raised with the Board of Directors.

The Law

Under the Terms of Employment (Information) Act 1994, the following definitions apply-

“employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Act, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces)……….

“employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer;

Finding on Employee Status

The respondent representative submitted that the five questions as outlined in Revenue Commissioners v. Karshan [2023] IESC 24, were relevant to establish whether the complainant was an employee.

The test as per paragraph 281 of Karshan is as follows:

 In the light of the foregoing, the question of whether a contract is one of service or for services should, having regard to the well-established case law, be resolved by reference to the following five questions:

(i) Does the contract involve the exchange of wage or other remuneration for work?

(ii) If so, is the agreement one pursuant to which the worker is agreeing to provide their own services, and not those of a third party, to the employer?

(iii) If so, does the employer exercise sufficient control over the putative employee to render the agreement one that is capable of being an employment agreement?

(iv) If these three requirements are met the decision maker must then determine whether the terms of the contract between employer and worker interpreted in the light of the admissible factual matrix and having regard to the working arrangements between the parties as disclosed by the evidence, are consistent with a contract of employment, or with some other form of contract having regard, in particular, to whether the arrangements point to the putative employee working for themselves or for the putative employer.

(v) Finally, it should be determined whether there is anything in the legislative regime under consideration that requires the court to adjust or supplement any of the foregoing.

In determining the status of employment, the statutory definitions are important. As per the definition of ‘employee’ and ‘employer’ under the Act, it is unclear whether the complainant entered into or works under a contact of employment. The respondent submitted a contract between the HSE, IMO and the Department of Health which makes reference to the ‘Out of Hours Service’.

Under the definition of employer in the Act it states- ‘is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer;

I will return to the legislative regime under Question 5 below.

I will assess each of the questions as per Karshan.

Question 1- Wages/Remuneration for Work- It is questionable whether the respondent pays wages. The respondent refunds the fees for patients directly to the complainant. The respondent does not recover outstanding payments as this falls to the individual doctor. The earnings are transferred to the complainant without deduction of income tax by the respondent.

The payment for medical card patients changed from per patient to an hourly rate in 2020. In testimony, it was submitted by the respondent that these changes in 2020 were subject to consultation with doctor representatives on the Board of Directors.

The respondent submits that patient fees are fully refunded to doctors albeit on an hourly rate for medical card patients.

The complainant confirmed he receives these payments electronically to his practice.

Question 2- Own Services or Third Party- A doctor can arrange cover with a colleague or the respondent will obtain cover from an associate member, if possible. The complainant submitted that he works most shifts and cover is rarely required.

Question 3- Sufficient Control- The respondent prepares the rosters and submitted that the 100 hours per year can be flexible to afford breaks to doctors when requested. The complainant treats patients professionally as per his medical training, without involvement from the respondent. The respondent employs their own reception staff, drivers and some nurses. The control element is that 100 hours of cover is expected from each member doctor. This is the extent of the respondent’s control over the work.

Question 4- Factual Matrix- Other factors often determine the true status of the relationship. Other than the rosters and provision of premises to treat patients, there is no further control or stipulations on the complainant from the respondent.

Another factor is that the complainant indemnifies himself, with no insurance liability on the respondent.

Also, the complainant pays a subscription fee to cover the red eye shift.

Question 5- Legislative Regime- The definitions of employee/employer in the Act, along with whether a contract of employment was entered into, can adjust or supplement any of the foregoing as per Karshan. The respondent denies being the employer and questions whether there is a contract of employment. The respondent relies on section 58 of the Health Act 1970 and the related contract of July 2023 between the HSE, IMO and the Department of Health which makes reference to the ‘Out of Hours Service’.

Section 58 (1) of the Health Act 1970 states-‘A health board shall make available without charge a general practitioner medical and surgical service for persons with full eligibility.’

Although regulations and schemes have evolved substantially since the 1970’s, it is significant that the ‘general practitioner medical and surgical service’ continues to be the model for the out of hours service.

Conclusion

I find that the monies refunded to the complainant cannot be described as wages as they are irregular payments, are not taxed at source, and have not been agreed between the complainant and respondent. The complainant, on his own behalf chases up outstanding payments from private patients.

However, the 1st question of Karshan also refers to ‘other remuneration’. This means the 1st filter question may not be an impediment for the complainant. The complainant also fulfils the 2nd and 3rd filter questions as he provides his own service and is subject to some control by the respondent.

As per the 4th question, the factual matrix needs to be assessed to determine whether they are ‘consistent with a contract of employment’. The contract between the HSE, IMO and Department of Health which includes a clause on ‘Out of Hours Service’ shows that these matters are already the subject of a separate contract. It is questionable then whether there can be a parallel contract of employment between the complainant and respondent.

The legislative regime (5th question of Karshan) is the Terms of Employment (Information) Act which requires the payment of wages for a contract of employment to exist. This narrows the broader wording of ‘other remuneration’ in the 1st question of Karshan.

Other factors such as the complainant providing his own indemnity along with the payment of a subscription indicates some other form of contract rather than a contract of employment.

It is also a factor that the ‘service’ as described in the Health Act has continued with mainly independent doctors such as the complainant, albeit with terms agreed between the HSE, IMO and the Department of Health.

As the complainant is claiming employee status, the onus is on him to provide the relevant proof of his status as an employee. There was insufficient evidence to show that the service is delivered by the complainant as an employee under an employment contract with the respondent.

For the reasons outlined, I find that there was no contract of employment entered into by the complainant and respondent and consequently the respondent is not the employer, in accordance with the Act.

I decide I have no jurisdiction to hear the substantive complaint under the Terms of Employment (Information) Act.

I decide I have no jurisdiction to hear the substantive complaint under the Terms of Employment (Information) Act.

Terms of Employment, Employee status