Can a person be regarded as a worker when not required to accept a minimum amount of work?
In general terms for a person to be classified as an employee there must be;
- control (the contractor dictates the terms of the service or work the person must carry-out on payment of remuneration normally a wage to the person),
- mutuality of obligations (obligation for the contractor to provide work and obligation for the person to accept the work and do the work),
- personal service by the person thus no other third party can provide the service on the person’s behalf and
- that the contractor is not a client or customer of any professional or business undertaking carried out by the person.
Where there is no business to business relationship in place between the parties, and (2) from the above does not apply, and the set up between the contractor and the person is a casual arrangement with no obligation to offer work, but where work is offered, but there is no obligation to accept the work, then the status of the person is more than likely to be that of worker as opposed to an employee of the contractor. The recent Employment Appeal Tribunal (EAT) decision in the case of Nursing and Midwifery Council v Mr R Somerville gives further support to this scenario where the person provides personal services to a contractor under a series of contracts.
In the above case, Mr Somerville (S) worked under a series of individual contracts with Nursing & Midwifery Council (NMC) sitting as a panel committee member providing services personally with no option of substitution. The (NMC) offered ‘sitting in’ dates that (S) could accept and if accepted (S) was still free to withdraw from the sitting. No minimum ‘sitting in’ dates were offered by (NMC).
Having a series of continuous individual contracts with the same contractor could be regarded as being an overarching contract where a series of separate assignments are linked into a single ongoing employment/working relationship. This appeared to apply to (S) as per his letters of appointment and the Panel Member Services Agreement thus (S) contended that his status was either an employee or a worker and therefore entitled to paid statutory holidays.
Employment tribunal decision
The Employment Tribunal held that (S) was not an employee as (2) from the above was not satisfied but decided that (S) was a worker within the meaning of section 230(3)(b) of the Employment Rights Act 1996 ("ERA") and regulation 2(1) of the Working Time Regulations 1998.
(NMC) appealed to the EAT on the grounds that (S) could not be a worker within the meaning of section 230(3)(b) ERA, as there must be a minimum of obligation in place to be so classified as a worker ie obligation to accept and perform some minimum amount of work for an employer (normally applies to employee status - Nethermere (St Neots) Ltd v Taverna and Gardiner: CA 1984).
The EAT reviewed existing case law on what was meant by mutuality of obligations and dismissed the appeal on the basis that “it was not a prerequisite for satisfying the ERA and WTR definitions of worker status, in circumstances where, as in the instant case, an overarching contract existed between the parties under which the individual agreed to perform services personally ….. and had done so in respect of a series of separate contracts. The absence of an irreducible minimum of obligation could be relevant to the question of whether the client / customer exception applied, but it was not necessarily fatal to a conclusion of worker status” (a).
Where a worker status is established then that worker is entitled to certain employment rights, amongst other things, under Working Time Regulations in particular paid holidays.
(NMC) have been granted permission to appeal to Court of Appeal and thus it is not the end of the matter.
The article is for general information purposes only and should you require any further assistance on the matter please do not hesitate to call our advice-line team on 01455 852028.
(a) https://www.bailii.org/uk/cases/UKEAT/2021/0258_20_0505.html
