In Nursing and Midwifery Council v Somerville, the Claimant was a panel member chair of the NMC’s fitness to practice committee. He brought a claim to the Employment Tribunal arguing that he was a ‘worker’ or an ‘employee,’ and therefore entitled to statutory holiday pay –even though both parties had agreed that the Claimant would be carrying out his work as an independent contractor.
The Employment Tribunal found that there was a series of individual contracts between the Claimant and the NMC each time he opted to sit on a hearing; that there was an overarching contract between the parties as his term of appointment was for a period of four years; that there was no right of substitution in that he had to provide his services personally; and that the NMC was not a client or customer of the Claimant.
In these circumstances, the Tribunal concluded that although there was no obligation on the Claimant to accept a minimum amount of sitting dates and that he was free to withdraw from dates on which he had agreed to sit – while this meant that there was insufficient ‘mutuality of obligation’ for the Claimant to have the status of an employee – it was not incompatible with worker status and that the Claimant was a worker within the meaning of section 230(3)(b) of the Employment Rights Act 1996.
The NMC appealed arguing that the absence of any obligation on an individual to accept and perform some minimum amount of work is fatal to the proposition that the individual could be a worker, since an ‘irreducible minimum’ of obligation is a prerequisite for worker status. In dismissing the appeal, the EAT concluded that the case law had not in fact recognised that an irreducible minimum of obligation was essential for worker status, and, that the NMC’s reliance on the Supreme Court’s decision in the recent Uber case to show otherwise was not a proper interpretation of that judgment.
The EAT further stated that the word ‘undertakes’ in the statutory definition of a worker, where it says that the individual ‘undertakes to do or perform personally any work,’ did not in itself impose an obligation of some minimum amount of work, contrary to what the NMC had argued; and further, that the Employment Tribunal was entitled to treat the fact that the Claimant paid his own income tax and national insurance as not preventing him from having worker status.
This case comes on the back of a number of recent decisions of the courts which have found that many individuals working in the ‘gig economy’ are not self-employed but are in fact ‘workers’ – and it shows that the current enthusiasm to extend employment rights to individuals is not limited to low-skilled sectors, given that the Claimant was a panel chair of a major regulatory body and a barrister by profession.
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