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Tags: Nursing & Midwifery Council v Somerville, worker status
Categories: Employment Law
Summary:
Does an individual need to be offered and accept a minimum amount of work in order to be a ‘worker’?
No, says the Court of Appeal in Somerville v Nursing & Midwifery Council (available here).
Background:
The well-established legal test to establish worker status is set out at s230 of the Employment Rights Act 1996 (‘ERA’) (and similarly in other legislation) and is that:
If the individual does not meet that test they will be self-employed.
Facts:
Mr Somerville was a panel member chair of the Nursing and Midwifery Council’s (NMC) Fitness to Practice Committee from 2012 to 2020, which he did alongside his work as a barrister. His contract with the NMC said he was a self-employed contractor and gave no requirement for him to be offered any work. Further if Mr Somerville was offered work (in this case a ‘sitting date’), he was not obliged to accept it and was free to withdraw.
Mr Somerville claimed at the employment tribunal (Tribunal) that he was either an employee or a worker, and was therefore entitled to paid holiday.
Tribunal decision
The Tribunal held that Mr Somerville was a worker. There was a series of individual contracts between him and the NMC each time he agreed to sit on a hearing panel, as well as an overarching four-year contract for each term of appointment to the committee.
There was no right of substitution in the contracts and the lack of control in his relationship with the NMC was not something Mr Somerville would likely accept if genuinely self-employed. He had to do the work personally, work to the standards and requirements of the NMC and undertake mandatory training as part of his duties. Further, his pay was fixed and non-negotiable.
EAT decision
The NMC appealed to the employment appeal tribunal (EAT). The NMC argued that to be a worker there must be some obligation to accept and perform a minimum amount of work. To support this argument it referred to a comment in the Supreme Court’s decision in Uber BV and others v Aslam which it said set out an ‘irreducible minimum of obligation’ as a general test for worker status. Therefore the absence of any obligation on Mr Somerville to accept and perform some minimum amount of work meant that he could not be a worker.
The EAT dismissed the appeal and agreed with the Tribunal that Mr Somerville was a worker on each occasion he provided work (and under the overarching contract for providing his services). The EAT considered that the Supreme Court in Uber did not make an ‘irreducible minimum of obligation‘ a condition for worker status.
The NMC appealed to the Court of Appeal.
Court of Appeal decision
The Court of Appeal dismissed the appeal. It agreed with the EAT that an ‘irreducible minimum of obligation’ is not required in order to demonstrate worker status. The test is based on the statutory definition in regulation 2(1)(b). There is no need to introduce a further requirement to that test.
Implications:
An individual does not need to be offered and accept a minimum amount of work to have worker status. Even though Mr Somerville could refuse and withdraw from work, and his contract said he was self-employed, he was in fact a worker.
Provided that (as in this case) there is an obligation to provide personal services under an agreement for the duration of that agreement (and the organisation for whom the work is being carried out is not a client or customer of the individual), then it is likely that worker status will be established without the need to show more.
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