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How can an individual show they are a worker entitled to statutory rights?

Following on from our report on the Uber case, we look at the Employment Appeal Tribunal (EAT) decision in Nursing and Midwifery Council v Somerville.

This was a case addressing the question as to whether an individual was a ‘worker’ for the purpose of various statutory rights, including holiday pay and other rights in relation to working time and national minimum wage.

The claimant was a fee-paid panel member chair of the Nursing and Midwifery Council (NMC) Fitness to Practice Committee from 2012 to 2020 under two agreements. The NMC was not obliged to offer him a minimum number of ‘sitting’ dates and he was free to withdraw from dates he had accepted, but, if he worked he was obliged to do so personally with the NMC paying him for these services.

There were a series of individual contracts each time he sat on a panel and an overarching agreement for the provision of his services. As such, there was a contract in place in between any sittings.

He commenced tribunal proceedings to recover statutory holiday pay on the basis that he was a worker. To recover such holiday pay, he had to show he was a ‘worker’ entitled to claim under the Working Time Regulations 1998. He was successful, but the NMC appealed on the basis that the lack of an ‘irreducible minimum of obligations’ was inconsistent with ‘worker’ status.

The EAT upheld this successful claim deciding that he was a worker and all that he was required to show was:

  • a contract to provide work or service;
  • the contract obliged the ‘worker’ to do the work (or provide the services) personally himself; and
  • ‘the employer’ for whom the work is done (or to whom the services are provided) must not be a client or customer of a business being run by the ‘worker’ on their own account.

 There was no need for there to be the ‘irreducible minimum of obligation’ on both parties in this case. If an individual can clear the three hurdles listed above, they may be successful in showing worker status without there being an obligation on the ‘worker’ to accept and perform some minimum amount of work, nor an obligation on the ‘employer’ to offer work and/or pay for this.