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Irreducible Minimum of Obligation and Worker Status

The Employment Appeal Tribunal (“EAT”) has recently held in Nursing and Midwifery Council v Somerville that there is no need to show an irreducible minimum of obligation to offer and accept work for the purposes of establishing “worker” status under the Working Time Regulations 1998 (“WTR”).

Facts

The Nursing and Midwifery Council (“NMC”) appointed Mr Somerville as a member and chair of a ‘Fitness to Practice Committee’ on a four-year term, under “supply of services” contracts in 2012 and again in 2016.  

The contracts described Mr Somerville as an ‘independent contractor’ and covered the training given, expected standards and the confidentiality that was required if he was asked to sit in on a hearing. There was, however, no obligation for the NMC to offer a minimum number of sittings, and Mr Somerville was able to withdraw from sittings he had previously accepted. 

Mr Somerville claimed unpaid holiday pay from the NMC on the basis that he was either a “worker” under the Working Time Regulations 1998, or an employee under the Employment Rights Act 1996.  

The Employment Tribunal held that Mr Somerville was not an employee, as there was a lack of the necessary mutuality of obligation which is required to support an employment relationship, but decided that he was a worker, saying that there was an overarching contract between the parties as well as individual contracts every time Mr Somerville accepted a sitting. 

The NMC appealed to the EAT.

Employment Appeal Tribunal Decision

The EAT upheld the Employment Tribunal’s decision and dismissed the appeal.  After having reviewed case law, the EAT rejected NMC’s argument that a lack of mutuality of obligation was inconsistent with the conclusion on worker status under the Working Time Regulations. The EAT took the stance that there is no such obligation for an individual to be offered and accept a minimum amount of work to fulfil the requirements of being classed as a “worker” under the WTR. 

The EAT also agreed that there was an overarching contract covering the provision of Mr Somerville’s services, and held that the Employment Tribunal did not err in law in finding that individual contracts arose when Mr Somerville provided his services to the panel, and that he was a “worker” under each of these contracts, as he was providing services personally other than in the context of a business. 

The ImplicationS

Individuals can be “workers” for the purposes of the WTR if they provide personal services to another person in circumstances where that other person is not a client of the individual’s business, irrespective of any mutuality of obligation to undertake a minimum amount of work, and therefore such individuals may be entitled to receive statutory benefits under the WTR such as holiday pay.

For more information on this article, please contact our Employment team.

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