Nursing and Midwifery Council v Somerville (Employee, Worker or Self Employed): EAT 5 May 2021

The Nursing and Midwifery Council (‘the Respondent’) appealed the Employment Tribunal’s (‘the Tribunal’) conclusion that the Claimant, a panel member chair of its Fitness to Practice Committee, was a worker within the meaning of section 230(3)(b) Employment Rights Act 1996 (‘ERA’) and regulation 2(1) Working Time Regulations 1998 (‘WTR’).
The Tribunal found that there were 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 in relation to the provision of his services as a panel member chair. The Tribunal also found that the Claimant agreed to provide his services personally to the Respondent. Those findings were not challenged in the appeal. In rejecting his alternative contention that he was an employee under a contract of service, the Tribunal decided that there was no irreducible minimum of obligation, as the Claimant was not obliged to offer a minimum amount of sitting dates and he was free to withdraw from dates he had accepted. The Claimant did not appeal that decision.
The Respondent appealed the conclusion that the Claimant was a worker on the basis that: (i) the Tribunal had misdirected itself in law, since an absence of mutuality of obligation in the sense of an absence of an irreducible minimum of obligation as identified in the employee case law was incompatible with a finding of worker status; and (ii) that in finding the Respondent was not a client or customer of a business carried on by the Claimant, the Tribunal had failed to consider relevant factors and had taken into account irrelevant considerations.
Held: A review of the authorities and a consideration of the statutory language indicated that an irreducible minimum of obligation in the sense relied upon by the Respondent was not a prerequisite for satisfying the ERA and WTR definitions of worker status, in circumstances where, as in the instant case, an overarching contract existed between the parties under which the individual agreed to perform services personally to the Respondent and had done so in respect of a series of separate contracts. The absence of an irreducible minimum of obligation could be relevant to the question of whether the client / customer exception applied, but it was not necessarily fatal to a conclusion of worker status. Further, that in considering the client / customer exception in this case, the Tribunal had made no error of law; the weight that it attached to particular factors was a matter for its evaluation.
Accordingly, the appeal was dismissed.
[2021] UKEAT 0258 – 20 – 0505
England and Wales

Updated: 22 June 2021; Ref: scu.663124