Worker status: Irreducible minimum of obligation

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Worker status: Irreducible minimum of obligation

Published 7 marzo 2022

The Court of Appeal has confirmed that ‘worker’ status does not rely on the existence of an irreducible minimum of obligation.

THE FACTS

Mr Somerville was a panel member of a committee of the Nursing and Midwifery Council (the NMC).  There was an overarching contract between him and the NMC under which he was not required to perform any work.  There was also a series of individual contracts between him and the NMC each time he agreed to sit on a hearing panel, under which he agreed to attend the hearing in return for a fee.  The NMC was not required to offer him a minimum number of sitting dates and he was free to withdraw from sitting dates, even after he had accepted the dates.  He provided his services personally, with no right of substitution, and the NMC was neither a client nor a customer. 

Mr Somerville claimed in the employment tribunal that he was entitled to paid holiday, on the basis that he was either an employee or a worker. 

As we reported here , the Employment Appeal Tribunal found that Mr Somerville was not an employee, but  a worker.  The NMC appealed unsuccessfully to the EAT.  The NMC then appealed to the Court of Appeal, which dismissed the appeal, confirming that Mr Somerville was a worker and therefore entitled to paid holiday.

Key to the courts’ judgments was the question of whether it is a prerequisite of worker status for there to be an ‘irreducible minimum of obligation’.  The Court of Appeal has confirmed that this is not necessary.  It is sufficient (as set out in the statutory definition of a ‘worker’) that the contract includes an obligation on the individual to perform work or services personally, and that the other party is not a client or a customer.  This was the case in respect of each of the individual contracts under which Mr Somerville agreed to attend a panel hearing in return for a fee from the NMC.

WHAT DOES THIS MEAN FOR EMPLOYERS?

This case follows the current direction of travel whereby the courts confer worker status on  individuals who are required to perform services personally(so long as the other party is not a client or customer of that individual).  The individual may therefore be entitled to worker related rights – in particular, the National Minimum Wage and paid holiday.  This will be relevant to organisations who contract with panel members and to other businesses who engage with zero hours and casual workers under overarching contracts.

 Nursing and Midwifery Council v Somerville

Authors

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

Hilary Larter

Hilary Larter

Leeds

+44 (0)113 251 4710

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