In the recent case of Nursing and Midwifery Council v Somerville, the Employment Appeal Tribunal (EAT) considered the employment status of a panel member sitting on the Nursing and Midwifery Council (NMC). This case follows a series of other recent decisions relating to employment status and the focus of this particular case was “mutuality of obligation” and specifically, whether a minimum level of obligation was a prerequisite for “worker” status.
The Claimant, a barrister, was appointed by the NMC as a panel member chair for a four-year term in April 2012. He was subsequently reappointed for a further four-year term in April 2016. His appointment letter stated: ‘You are not an employee or an office holder of the NMC. Your appointment as a practice committee member makes you eligible to provide services, as an independent contractor, to the NMC, as a panellist or a panel chair’.
In July 2018, the Claimant brought a claim against the NMC for statutory holiday pay, on the basis that he was either an employee or a worker for the purposes of the Employment Rights Act 1996 and the Working Time Regulations 1998.
Employment Tribunal (ET) and EAT Decision
The ET considered a number of factors which cumulatively led to its conclusion that the Claimant was a “worker” for employment law purposes, even though the contractual documentation described the Claimant as an independent contractor. Amongst other matters, the ET found that there was a series of individual contracts between the parties each time the Claimant agreed to sit on a hearing (for which the Respondent agreed to pay him a fee) and also an overarching contract between them by virtue of the letters of appointment and the Panel Member Services Agreement.
The NMC appealed the decision. It submitted that an irreducible minimum of obligation was an essential requirement for worker status and that this was missing in this case because the Claimant was not required to offer a minimum number of panel sitting dates and was free to withdraw from any dates he accepted. The EAT conducted a full review of the authorities in this area of law, including the Supreme Court’s recent decision in Uber BV v Aslam, and held that the absence of any obligation on an individual to accept and perform a minimum amount of work was not fatal to establishing worker status in circumstances where there was an overarching contract with the employer, as in this case. It also noted that the position may be different in instances where there was a dispute as to whether a contractual relationship existed between the parties at the material time.
Comment
This decision highlights how complex it can be to determine the employment status of an individual based on the existing case law and it seems inevitable that we will see further case law in this area.
This case is also an important reminder that when determining employment status, the tribunal will look behind the contractual documentation to the reality of the working arrangements. Therefore, even if, on the face of it, the work being undertaken by the individual is on an ad-hoc consultancy type basis, such as in the case of a panel member or a chair, if the individual is sufficiently integrated into the organisation, there is a real risk that a court or tribunal may deem the individual to be a worker and entitled to all the rights and protections associated with worker status.