No minimum working time required to be counted as worker, EAT rules

The EAT said that a minimum commitment was not necessary for someone to achieve 'worker' status, in a case

The case was brought to the Employment Tribunal by Robin Somerville, who was a panel member chair of the Nursing and Midwifery Council’s (NMC) fitness to practice committee. Somerville claimed unpaid statutory holiday pay from the NMC, arguing that he was an employee or worker of the body.

The EAT said that even though Somerville could chose not to offer any minimum number of sitting days and could withdraw from dates he had accepted, as there was both a series of contracts for each time Somerville sat on a hearing and an overarching contract in relation to S's services, that was sufficient.

Employment law expert Ed Goodwyn of Pinsent Masons, the law firm behind Out-Law, said: "this case highlights the challenges for employers and workers in determining worker and employment status. With the rise of the so-called gig economy, this case further indicates the courts'willingness to find statutory protection for atypical workers."

In 2017 the Taylor Report recommended legislating to provide clarity over worker and employment status.  These recommendations, which were accepted by the UK government, have yet to be adopted. "Whether the continued uncertainly evidenced by the amount of litigation surrounding worker status will lead to a change of heart from the government, only time will tell," said Goodwyn. "However the Queen's speech was silent on this issue."

The tribunal judge found that a series of individual contracts existed between Somerville and the NMC each time he agreed to sit on a hearing, and the NMC agreed to pay him a fee for each of these contracts. There was also an overarching four-year contract between the parties for each term of appointment to the committee.

The judge said as there was no contractual obligation on Somerville to accept a minimum number of sitting dates and he was free to withdraw from dates he had accepted, there was insufficient mutuality of obligation to give rise to an employment contract.

However, as Somerville had no right of substitution under the contracts, and the NMC was not a client or customer of a business run by him, he was a worker within the meaning of the ERA.

The NMC appealed the decision, saying because there was no obligation for Somerville to accept and perform a minimum amount of work he could not be considered a worker, as there needed to be some element of mutuality to the relationship.

The EAT agreed with the tribunal that the overarching contract between the parties meant there did not need to be an “irreducible minimum of obligation” in order for Somerville to be considered as a worker.

The case is the latest in a string of employment decisions concerning ‘worker’ status, and the EAT referred to a number of these cases in its decision. These included the February 2021 UK Supreme Court decision which found that Uber drivers are workers rather than self-employed contractors, and the EAT’s 2020 decision in a case brought by cyclist Jess Varnish against British Cycling, which found she was neither an employee nor a worker.

Both the Uber and Varnish cases discussed the question of minimum obligation. The EAT rejected the NMC’s argument that the Uber case laid down a test of irreducible minimum of obligation for worker status to arise, instead saying that the existence of a contract between an individual and the potential employer was more significant.