On 31 August 2021 the COVID-19 right-to-work concession allowing employers to carry out...
Employment Law Cases
Establishing 'worker' status: no minimum obligation required
Nursing and Midwifery Council v Somerville
Mutuality of obligations, in the sense of an obligation to accept and perform some minimum amount of work, is not a prerequisite for ‘worker’ status.
Mr Somerville, a barrister, was appointed by the Nursing and Midwifery Council (NMC) as a panel chair in 2012. His appointment letter stated: ‘You are not an employee or an office holder of the NMC. Your appointment as a practice committee member makes you eligible to provide services, as an independent contractor, to the NMC, as a panellist or a panel chair’. The NMC was not obliged to offer a minimum number of sitting dates on the committee and Mr Somerville was free to withdraw from dates he had accepted. However, he was required to provide his services personally. He brought a claim against the NMC for holiday pay, on the basis that he was either an employee or a worker for the purposes of the Employment Rights Act 1996 (ERA) and the Working Time Regulations 1998 (WTR).
The tribunal held that, although there was not sufficient mutuality of obligation or control for Mr Somerville to be deemed to be an employee, he was engaged by the NMC as a ‘worker’ for the purposes of ERA, s. 230(3)(b) and the WTR, reg. 2(1)(b). Even though the contractual documentation described Mr Somerville as an independent contractor, there was in fact an ‘overarching contract’ between him and the NMC, in addition to individual contracts each time he accepted an assignment. The NMC appealed.
The appeal was dismissed.
Here there was a series of individual contracts each time Mr Somerville sat on a panel and an overarching agreement for the provision of his services. The EAT conducted a full review of the authorities, including the Supreme Court’s decision in Uber, and held that while an irreducible minimum of obligation was not essential for ‘worker’ status, it could be relevant to instances where it was disputed that there was a contract at all. That was not the case here.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2021/0258_20_0505.html
This decision shows that ‘worker’ status isn’t an issue only for those in the gig economy; it has a wider implication for all organisations. All that is required for ‘worker’ status is that there is a contract for the provision of work/services under which the individual is obliged to do the work/perform the services personally - and the end user is not a client or customer of a profession or business carried on by that individual.