No extra ingredient required to establish worker status

The Court of Appeal has confirmed that no “irreducible minimum of obligation” is needed in order to establish worker status. While this is necessary to establish employee status, it is not required satisfy the definition of worker. To be a worker, the law merely requires a contract to perform work or services personally, subject only to an exception where the other party to the contract is a client or customer of the individual’s profession or business.

In this case Mr Somerville’s appointment as a panel member and chair of the Fitness to Practice Committee of the Nursing and Midwifery Council was subject to written terms of agreement which amounted to an “overarching contract”. He also entered into separate agreements to sit on panel hearings on particular days, although he was free to refuse to accept any particular hearing date, or to withdraw from a hearing that he had previously agreed to attend.

The employment tribunal decided that Mr Somerville was a worker, since when he sat on the Committee he was working under a contract to do work personally, and the Council was not a client or customer of a business or profession he was undertaking. The Council appealed to the Employment Appeal Tribunal on the basis that “the mutuality of obligation” required for worker status was not present: Mr Somerville was not under a contractual obligation to do any work and the Council was not under any obligation to provide work.

The EAT rejected the appeal, and the Council’s further appeal to the Court of Appeal has now been dismissed. This is an important clarification of the law, because there have been (at least arguably) conflicting decisions at EAT level on this point.

In practice, the presence of some degree of “mutuality of obligation” (in the sense described above) may serve as a pointer towards the existence of an obligation of personal service, but this decision demonstrates that this is not necessarily the case. All that is strictly required is an obligation to provide work personally in relation to each particular assignment; the fact that it is possible for the worker to withdraw from any particular assignment does not matter for these purposes.

As the question of Mr Somerville’s worker status was heard as a preliminary issue, the matter will return to the employment tribunal to determine the amount of holiday pay he is owed. It is not completely clear from the Court of Appeal’s ruling whether the overarching contract was sufficient to confer worker status, or whether he was only to be regarded as a worker while he was actually working on an assignment. The answer may have a bearing on how far back his claim for holiday pay can go, given the relevant time limits for submitting these claims.

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