The NMC appealed against the ET’s decision that the claimant, a panel member Chair of their Fitness to Practice Committee was a worker rather than being self-employed. This related to a claim for statutory holiday pay. The decision of the ET was that there was a series of individual contracts between the claimant and respondent when the claimant agreed to sit on a hearing. Aside from this there was an overarching contract relating to the provision of the claimant’s services as a panel member chair.

The NMC challenged the decision on a number of grounds. The first was that there was an absence of mutuality of obligation and the absence of an irreducible minimum of obligation was not compatible with worker status as outlined in case law. The NMC also argued that the Tribunal had failed to consider relevant factors and considered irrelevant matters.

The EAT dismissed the appeal outlining that an irreducible minimum of obligation was not required to satisfy the definition of a worker outlined in the Employment Rights Act 1996 or the Working Time Regulations 1998. All that it required was a contractual obligation concerning the provision of work/services which the putative worker was to undertake personally. Therefore, the statutory definition of a worker had been satisfied considering the contract between the parties. The NMC argued that the client/customer exception should have been applied.  However, the EAT did outline that the Tribunal had taken into account the non-exclusivity of the claimant’s work in the area of regulation. Indeed, the claimant’s tax and business expenses arrangement were rightly regarded as a neutral factor in the determination.Therefore, the appeal was dismissed with worker status being affirmed by the EAT.

Practical Lessons

This case demonstrates how the irreducible minimum of an obligation to take and perform a minimum amount of work was not required for a finding of worker status.  This does provide a greater ambit for worker status which is unsurprising considering how the cases in this area have been considered recently.  The view that it applies to a panel member may have ramifications for these types of panels in NI and how those members are to be construed.
https://www.gov.uk/employment-appeal-tribunal-decisions/nursing-and-midwifery-council-v-mr-r-somerville-ukeat-slash-0258-slash-20-slash-rn-v