In brief

It is not necessary for there to be an “irreducible minimum of obligation” between the parties in order for an individual to be held to be a worker under the Working Time Regulations 1998.

Key takeaways

• Determining worker status is difficult and fact-sensitive in each case. However, the Court of Appeal has confirmed that an individual can be a worker if they are required to provide their services personally on a specific occasion to another party (who is not a client or customer of the individual’s own business or profession).
• There is no requirement that there must be a number of occasions on which the individual is contracted to work, nor that the individual is obligated to accept work offered.

To discuss any of these issues further, please get in touch with your usual Baker McKenzie contact.

In more detail

Worker is a definition used in UK employment legislation which captures not only employees, but also temporary workers and freelancers. However, it does not include those who are genuinely in business on their own account.

Mr. Somerville was appointed by the Nursing and Midwifery Council (NMC) as a member and chair of its Fitness to Practice Committee. Under the agreements (which stated he was an independent contractor) between Mr. Somerville and the NMC, he had the right to choose whether or not to sit on a particular hearing offered to him on reasonable notice by the NMC. If he accepted a hearing, he agreed to use all reasonable endeavours to attend the entire hearing, but could withdraw if he gave notice at the earliest opportunity that he was doing so. If he did provide his services, the NMC agreed he would receive adequate training and information to hear a case.

In practice, the NMC would ask him to provide his dates of availability in advance over a six-month period, and then would allocate particular hearings to him. He did sometimes refuse dates. If the NMC cancelled a hearing in advance, he was paid 50% of the fee if it was within 14 days of the hearing, and if it was cancelled after it had started, he received payment in full.

He brought a claim for unpaid holiday pay. The employment tribunal held that there was no overarching employment contract between the NMC and Mr. Somerville, and there was insufficient mutuality of obligation between the parties to make the individual contracts in relation to each hearing date an employment contract, but that he was a worker under each of these contracts.

The Employment Appeal Tribunal (EAT) dismissed the NMC’s appeal. It was not necessary to have, as a prerequisite, an irreducible minimum of obligation in order to be a worker.

The Court of Appeal also dismissed the NMC’s appeal. The individual contracts for each hearing had to be read with the overarching agreements, which contained obligations that applied if Mr. Somerville agreed to chair a particular hearing and would receive a fee.

Mr. Somerville agreed to provide his services personally, and the NMC was not his client or customer. The employment tribunal was entitled to find that he was a worker for the purposes of the Working Time Regulations 1998. Not having an obligation to work in the overarching contract did not preclude him being a worker when he was, in fact, working; this did not change because he was entitled to change his mind and withdraw from a hearing he had previously accepted.

The Court of Appeal applied Uber BV and others v. Aslam and others (2021), a leading Supreme Court case on worker status. In that case too there was an overarching contract, but also a series of individual contracts when they were working, and the Supreme Court had held that an individual who is entitled to choose whether or not to work, and owes no obligation when not working, may still be a worker.

Nursing and Midwifery Council v. Somerville, Court of Appeal, [2022] EWCA Civ 229 (25 February 2022)