Fri 18 Mar 2022

Performance of minimum amount of work not required for worker status

Court of Appeal judgment brings some clarity to determining worker status

Nursing and Midwifery Council v Somerville concerned the status of chairs of the Nursing and Midwifery ("NMC") Fitness to Practice Committees.  The claimant had brought a claim before the employment tribunal for holiday pay, which required him to show that he was a "worker".  In the particular circumstances of this case, the employment tribunal concluded there were a series of individual contracts between the parties each time the claimant agreed to sit on a hearing, and also an overarching contract between them in relation to the provision of his services.  The claimant was not however obliged to accept any minimum amount of work and could withdraw his services from dates that he had accepted.  Despite the absence of any obligation to perform a minimum amount of work (something that is required to establish employee status) the tribunal concluded that he was a worker.

The NMC appealed to the Employment Appeal Tribunal ("EAT") arguing that the claimant could not be a worker because there was not an irreducible minimum obligation to carry out some work.  They argued that this was a pre-requisite to the statutory definition of a worker.  The EAT disagreed, upholding the judgment of the employment tribunal.  The NMC then appealed to the Court of Appeal on the same point.

The Court of Appeal dismissed the appeal.  It held that "Each time the Council offered a hearing date, and the claimant accepted it, he agreed to attend that hearing and the Council agreed to pay him a fee. By those individual agreements…the claimant "agreed to provide his services personally".  As the NMC was neither a client nor a customer of the claimant, that finding was sufficient for a conclusion to be reached that the claimant was a worker.  There was no need and no purpose served in introducing the concept of irreducible minimum of obligation as a pre-requisite for worker status. 

The issues involved in determining employment status are many and varied.  From the effect of a substitution clause when deciding if an individual working in the gig economy is a worker or self employed, through to the use of the check employment status for tax (CEST) tool when applying IR35, it is not straight forward.  The difficulty in providing clear guidance on status is perhaps well demonstrated by the fact we are still awaiting a response from the UK Government to the consultation on employment status that took place in 2018 following the Taylor review of modern working practices.  However, what this case does establish is that, for the purposes of the Working Time Regulations at least, it is sufficient for an individual to be required to provide their services personally on a specific occasion and for the other party to be neither a client nor a customer of a profession or a business carried out by the individual for worker status to be established.

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