The claimant was appointed as a member and chair of the Fitness to Practice Committee for the respondent.   This was under separate four-year terms in 2012 and 2016.  Under the contracts, the respondent was able to provide reasonable notice of a committee hearing and the claimant then chose whether he could provide his services.  The issue arising is that the claimant sought unpaid holiday pay arguing that he was a worker under the Working Time Regulations 1998.

The Tribunal, at first instance, found that there was an overarching contract which did not amount to a contract of employment.  There was no obligation to offer work and no obligation to accept the work.  Additionally, it was found that when the work was accepted the claimant was free to withdraw his acceptance.  However, it was held that there were individual contracts regarding the individual assignments and that they did amount to the claimant being regarded as a worker.  This was despite the fact that there was the absence of mutual obligations.  The respondent unsuccessfully appealed to the EAT and subsequently appealed to the Court of Appeal.

On the irreducible minimum of obligation the Court of Appeal held that the individual contracts for assignments had to be read in conjunction with the overarching agreements that were made in 2012 and 2016.   Those agreements did outline how the work was to be carried out, when the claimant had decided to take on the work.  It was found that the fact that the overarching contract did not impose an obligation to work did not necessarily stop the court from finding that the claimant was a worker.  The same also applied even though the claimant could withdraw from an agreement to attend a hearing.  The Court focused on agreements which were undertaken.  It was found that when the claimant chaired hearings, he did so under a contract to personally perform services.  As a result, this accorded with the language of the 1998 Regulations. As a result, it was held that the claimant did have worker status and the appeal was dismissed.

Practical Lessons:

This decision can be seen as moving the goalposts once again in cases which involve employment status.   For worker status, it had been thought that there was a need to have an irreducible minimum of obligation.  However, the Court of Appeal is stating that it is not required so where there is an agreement where an individual can refuse to take on work that is offered that will not necessarily preclude a finding of worker status.  Instead, the court will examine the individual agreements and whether they lead to the individual contracting personally to perform services.  This may lead to difficulties with some cases where the individual assignments are sporadic, and it will be interesting to see how the Tribunal and Court examines this in future cases.
https://www.matrixlaw.co.uk/wp-content/uploads/2022/02/Somerville-Judgment.pdf

EAT Case Review: https://www.legal-island.com/articles/uk/case-law/2021/june/nursing--midwifery-council-v-somerville/

ET Case Review: https://www.legal-island.com/articles/uk/case-law/2020/aug/somerville-v-medical-practitioners-tribunal-service--nursing-and-midwifery-council-2020/