"Irreducible minimum of mutual obligation" not needed for worker status


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The Court of Appeal has confirmed that the "irreducible minimum of mutual obligation" is not a prerequisite of worker status in Nursing and Midwifery Council v Somerville.

Mr Somerville was a fee-paid panel member on the Nursing and Midwifery Council's (NMC's) Fitness to Practise Committee. His work was governed by a services agreement. This stated that he had the status of an independent contractor and that nothing in the agreement created a relationship of employer and employee. There was no obligation on the NMC to request Mr Somerville's services, and he had no obligation to supply services when requested, but if he did provide services he would use "all reasonable endeavours" to attend for the full duration of the hearing. He could withdraw from a booking after accepting it, but had to give the NMC notification of this "at the earliest opportunity". In July 2018 he presented employment tribunal claims for holiday pay and/or unauthorised deductions arguing that he had either "employee" or "worker" status.

At a preliminary hearing an employment judge found that Mr Somerville satisfied the definition of "worker" on the basis that, although there wasn't sufficient mutuality of obligation to give rise to an overarching contract of employment or a series of individual contracts of employment, he had no right of substitution under the contracts, the NMC was not his client or customer, and he agreed to provide his services personally to the NMC. The NMC appealed on the basis that the lack of mutual obligation that the tribunal had relied on negated "worker" status. The Employment Appeal Tribunal dismissed the appeal and NMC then appealed to the Court of Appeal.

The Court of Appeal held that each time the NMC offered a hearing date and Mr Somerville accepted it, an individual contract arose whereby he agreed to attend the hearing and the NMC agreed to pay a fee. Assuming a hearing took place then he worked under a contract personally to perform services. There was nothing in the statutory definition of a worker which indicated that there had to be a superadded obligation to provide services independent from the provision of services on a specific occasion.

The Court considered its decision was consistent with the Supreme Court's decision in the Uber case. Here it was held that the fact that an individual is entirely free to work or not, and owed no contractual obligation to the person for whom the work is performed when not working, does not preclude a finding that the individual is a worker. Although the Supreme Court had discussed the requirement of an "irreducible minimum of obligation", that was in the context of identifying when the obligation to perform work arose for the purposes of determining whether the drivers were engaged in "working time". There was no suggestion that even where a person is working or providing services personally under a contract, there had to be some superadded obligation on a putative employer to provide work or on an individual to accept work before they could fall within the definition of "worker".

Take note:  It is clear, following the decision in Somerville, that in order to prove worker status there is no need to show that mutuality of obligation exists.  Provided that, as in this case, there is an obligation to provide personal services under an agreement for the duration of that agreement (and the organisation for whom the work is being carried out is not a client or customer of the individual), then it is likely that worker status will be established without the need to show more.

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