Is a minimum amount of work necessary to establish worker status?
28 March 2022
The Court of Appeal has ruled on whether a committee member was a ‘worker’ and therefore entitled to be paid holiday pay under the Working Time Regulations 1998.
Nursing and Midwifery Council v Somerville  EWCA Civ 229
The claimant, S, had been appointed by the Nursing and Midwifery Council as member and chair of its Fitness to Practice Committee, under consecutive four-year services agreements in which he was described as an independent contractor. Under the terms of the services agreement, the Council agreed to provide reasonable notice of a committee hearing and S was free to choose whether or not to provide his services at that hearing. The agreement did not impose any obligation on the Council to request his services, nor for S to provide them. In practice, he provided his available dates over a six month period and was allocated hearings about a month in advance. He occasionally refused hearings, and was able to withdraw from a hearing even after it was allocated to him without having to give a reason and without any penalty.
S brought a claim for unpaid holiday pay in the employment tribunal. A preliminary hearing was held to determine whether S was a ‘worker’ or an ‘employee’. The employment tribunal decided that he was not an employee, as there was insufficient mutuality of obligation. However it held that he was a worker in respect of each of the individual hearings that he attended.
The Council’s appeal to the Employment Appeal Tribunal was dismissed. It was satisfied that there was no “irreducible minimum of obligation” necessary in order to establish worker status (see our previous summary of this decision). The Council appealed to the Court of Appeal.
Court of Appeal decision
The Court has dismissed the Council’s appeal, upholding the decisions of the employment tribunal and the EAT.
The Court held that even without the existence of any overarching contract imposing an obligation to work, that did not preclude a finding that the individual was a worker on each occasion when he was in fact working. S agreed each time to provide his services personally, and the Council was neither a client nor a customer of a profession or business carried out by him. This was consistent with the definition of ‘worker’ under the Working Time Regulations 1998.
The Court did not consider it necessary to impose an additional requirement for an “irreducible minimum of obligation” for worker status to arise. If a specific agreement to provide services on a particular occasion amounted to a worker’s contract, it was irrelevant that the parties were not obliged to offer or accept work on future occasions under an overarching contract.
Consequences of this decision
The Court in this case referred to the decision of the Supreme Court last year in Uber BV and others v Aslam and others, in which it was held that Uber drivers were providing services under individual contracts each time they worked. The Supreme Court was satisfied that if an individual is entirely free to work (or not), and owes no contractual obligation when not working, it does not preclude a finding that they are a worker on the occasions they do work.
The fact that an employer has no obligation to offer, and the individual no obligation to accept, a minimum amount of work will not defeat a claim for ‘worker’ status. This decision once again reiterates that the test for establishing worker status is a relatively easy one to pass.
Subject to any further appeal, the case will now return to the employment tribunal to decide whether the claimant is entitled to receive holiday pay, and how much.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at March 2022.