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What level of obligation is required by an individual to be classed as a “worker”?

Associate Solicitor, Charlotte McBride

The Employment Appeal Tribunal (“EAT”) in the case of Sommerville v Nursing & Midwifery Council, has considered what level of obligation or commitment is required by an individual to be classed as a worker in employment law.

Background

The Claimant sat as a panel member for the regulatory body, the Nursing & Midwifery Council (“the Respondent”) on its Fitness to Practice panels. The Claimant was initially appointed for a four-year term on the 16 April 2012 and then reappointed to a further four-year term in April 2016. The Claimant had no right of substitution in respect of his duties, he was required to perform the services personally, albeit there was a degree of flexibility to the role. For example, there was no obligation for the Claimant to offer sittings and likewise no contractual obligation on the Respondent to offer work, therefore no mutuality of obligations.

The Claimant brought a claim against the Respondent to the Employment Tribunal (“ET”) for failure to pay statutory holiday pay. The Claimant sought to establish that he was considered either an employee or worker and therefore entitled to statutory holiday pay under the Working Time Regulations 1998 (“WTR”).

The Law

Section 230(3) of the Employment Rights Act 1996 (“ERA”) defines a worker in the employment context. Regulation 2(1) of the Working Time Regulations 1998 (“WTR”) adopts the same definition of worker status. A worker is defined as:

“In this Act “worker” … means an individual who has entered into or works under (or, where the employment has ceased, worked under) –

  1. A contract of employment, or
  2. Any other contract, whether express or implied and (if it is express) where oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individuals;

And any reference to a worker’s contract shall be construed accordingly.”

Individuals with worker status are not entitled to the same range of employment rights as employees, however they are conferred some protection and rights, including the right to minimum wage and holiday pay.

Decision

The ET held that the Claimant was a worker. The ET concluded that even though there was effectively no irreducible minimum of obligation – typically required to establish worker or employee status – he could still be classed as a worker. The Claimant had no obligation to sit for a certain number of sessions, or specific sessions and he was entitled to withdraw attendance from dates he had previously agreed to attend. The ET nevertheless concluded that there were a series of contracts between both parties every time the Claimant agreed to sit on the panel at a hearing and there also existed an overarching agreement for the Claimant’s agreement to be a panel member. The ET also held that the Claimant was required to perform the services personally, another hallmark of worker status under section 230(3) ERA. The Respondent appealed the decision, asserting that the irreducible minimum of obligation was essential in determining worker status.

The EAT rejected the Respondent’s appeal. The EAT concluded that an irreducible minimum of obligation in circumstances where there is an overarching contract in existence between the parties to perform services personally, was not a condition for satisfying the definition of a worker in both the ERA and the WTR.

Comment

This decision closely follows the recent Uber decision. It highlights that the irreducible minimum of obligation is not essential to establish worker status. The recent EAT decisions regarding working status are beginning to make it abundantly clear to employers that individuals can still be classed as workers (thereby attracting the relevant statutory rights connected with the status) even where there is no minimum expectation or obligation imposed on the individual to perform certain duties/tasks.

It is important for employers to correctly identify the employment status of their workforce to ensure individuals receive all their statutory rights connected with their employment and relevant status and to avoid the risk of an ET claim.

Case reference: Sommerville v Nursing & Midwifery Council [2021] UKEAT/0258/20

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