Employment Law Cases

Nursing and Midwifery Council v Somerville

An ‘irreducible minimum of obligation’ is not a prerequisite of ‘worker’ status. Such a status will exist when an individual undertakes to do work personally for someone who isn’t a client or customer.

Background

Mr Somerville, a barrister, was appointed by the Nursing and Midwifery Council (NMC) as a panel chair in 2012 and reappointed in 2016. 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. The contracts covered the standards expected and the training given and confidentiality required if he was asked to be a panellist. 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 EAT dismissed NMC’s appeal. 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. NMC appealed on the basis that the tribunal erred in finding an irreducible minimum of obligation was not a prerequisite for worker status and wrongly suggested a contract’s existence was relevant to determining whether there was such an irreducible minimum. Its position was that each contract had to include an irreducible minimum before it could fall within the scope of worker status.

Court of Appeal decision

The appeal was dismissed.

There was no need – or purpose served – in seeking to introduce the concept of an ‘irreducible minimum of obligation’ in the way argued for by NMC. The fact that Mr Somerville could withdraw from the agreement to attend a hearing even after he had accepted did not alter matters. He entered into a contract to provide personal services which existed until terminated. Although the two relevant contracts did not say that he was obliged to perform services, or that he would provide the services personally, the statutory definition of ‘worker’ does not indicate that there must be some distinct, superadded obligation to provide services independent from the provision of the services on a particular occasion.

On each occasion when he was asked to be a panellist, this was a separate contract which met the definition of worker as he was performing this work personally. The fact that the parties aren’t obliged to offer, or accept, any future work is irrelevant. The Court of Appeal also held that its decision was consistent with that of the Supreme Court in Uber - the fact that someone is entirely free to work or not and owes no contractual obligation to the person for whom the work is performed when not working, does not preclude a finding that the individual is worker.

Link to judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2022/229.html

Comment

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 personal provision of work/services and the end user is not a client or customer of a profession or business carried on by that individual. Even if that is not spelt out in the governing contract, once those services have been provided personally then they are likely to be a worker