The claimant, a barrister based in England, was a Tribunal Member for the first respondent and a Panel Chair for the second respondent.  His work with the first respondent had ended in April 2018 and the work with the second respondent was ongoing.  The contractual arrangement with both respondents labelled the claimant as an independent contractor.  The basis of his claim was that he was either an employee or a worker under Section 230 of the Employment Rights Act 1996.   It was on this basis that he was claiming unpaid holiday pay as well as an age discrimination claim against the first respondent.

On the nature of the relationship between the claimant and the respondents, the claimant’s case was that the work under taken with the respondents was not in the ordinary course of his work as a barrister.  Instead, he was recruited through a structured process and the work was not received by way of direct approach of advertising.   The Tribunal found that the claimant was a worker on the basis that being a Tribunal member was central to the regulator’s functions as well as the fact there was duty work that had to be completed by the claimant when a hearing had ended early.   Furthermore, there was a formal process by which the second respondent could monitor the work undertaken with the Tribunal holding that an independent contractor would be unlikely to submit themselves to that degree of subordination.   The Tribunal did acknowledge that there was a degree of independence that came with the position but that it was consistent with being judicial but this should not mean there can be no worker status given.    There was reference to the decision of Elias J in James v Redcats [2007] when he stated that the relationship could be seen as semi-detached rather than detached thus giving rise to worker status.  Accordingly, it was held that the claimant had the status of a worker and was entitled to statutory holiday pay in line with the Working Time Regulations 1998.

The Age Discrimination claim against the second respondent was dismissed as it was out of time.  His claim rested on his failure to be appointed as a Panel Chair in 2015 and for that reason his claim was some three years out of time.  There was no reason given that would have made it just and equitable to extend time.

Practical Lessons

This case is yet another one to add to the booklet on employment status.  This time it focuses on Tribunal members and the nature of their appointment.  The Tribunal did give heed to the fact there was independence given as to how the work was carried out but the fact it was acquired through a process, the respondents had a degree of control on when the work was carried out and oversight led to worker status being afforded.  This gives a plethora of rights and is important for others who will no doubt be in similar situations.
https://assets.publishing.service.gov.uk/media/5f228aede90e071a54ff1a2a/Mr_R_Somerville_-v-_Medical_Practitioners_Tribunal_Service___Nursing_and_Midwifery_Council_-_24136172018_-_Judgment.pdf 

The appeal to the EAT can be found here.