Worker status: Mutuality of obligation

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Worker status: Mutuality of obligation

Published 10 junio 2021

The EAT has held that the absence of mutuality of obligation will not necessarily prevent an individual from being a “worker”.

The facts 

Mr Somerville was a panel member of a committee of the Nursing and Midwifery Council (the NMC). 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 contract between them. The NMC was not required to offer him a minimum number of sitting dates, and he was free to withdraw from dates that he had accepted. He provided his services personally, with no right of substitution, and the NMC was not a client or a customer.

Mr Somerville claimed that he was either an employee or a worker, and therefore entitled to paid holiday.

The employment tribunal held that Mr Somerville was not an employee. Employment status requires mutuality of obligation – an obligation on the employer to offer work and on the employee to accept work – and there was insufficient mutuality of obligation between Mr Somerville and the NMC. However, the judge held that Mr Somerville was a worker.

The NMC appealed to the EAT in relation to the decision on worker status. It argued that, to be a worker, there must be an irreducible minimum of obligation.

The EAT dismissed the appeal. Having conducted an extensive review of the case law on mutuality of obligation in the context of “worker” status, the EAT held that, where it is established that there is an overarching contract to perform services personally (as there was in Mr Somerville’s case) there is no additional need to demonstrate an irreducible minimum of obligation to establish worker status.

What does this mean for employers?

Following this case, any individual who is required to perform services personally may be a worker, and therefore entitled to worker related rights – in particular, the National Minimum Wage and paid holiday - even if they are not required to accept work when it is offered. The NMC have been granted leave to appeal to the Court of Appeal specifically on the irreducible minimum point so this may not be the end of the issue. However, as well as being particularly relevant to organisations which, like the NMC, contract with panel members, other businesses who engage with zero hours and casual workers under overarching contracts will want to watch this case carefully as it progresses to the Court of Appeal.

Nursing and Midwifery Council v Mr R Somerville

Authors

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

Hilary Larter

Hilary Larter

Leeds

+44 (0)113 251 4710

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

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