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Employment Status

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Is a minimum degree of obligation or commitment required in order to be a worker?

Not always, held the EAT in Somerville v Nursing & Midwifery Council.

The Claimant, who sat as a panel member for the regulatory body the Nursing & Midwifery Council on its Fitness to Practice panels, brought a claim for unpaid statutory holiday pay.

The tribunal held that although he was not obliged to sit for a minimum number of sessions and he could withdraw from any dates he had accepted (in other words, there was 'no irreducible minimum of obligation'), he was a worker. The NMC appealed that finding on the basis that this irreducible minimum was a prerequisite for worker status.

The EAT rejected the appeal. There were a series of individual contracts each time he sat on a panel, and an overarching agreement for the provision of his services. Therefore, there was a contract in place in between any sittings. Following a thorough review of the authorities, including the Supreme Court's decision in Uber, it was held that this irreducible minimum of obligation was not essential for worker status, it could be relevant to cases where it was disputed that there was a contract at all, or if it was alleged that there was a customer or client relationship.

This case will be useful for anyone dealing with zero hours or casual contracts, especially where there is no minimum commitment expected of the worker.

Thanks to James English of Ward Hadaway for preparing this case summary.