Nursing and Midwifery Council v Somerville

A person may be a worker under regulation 2(1)(b) of the Working Time Regulations 1998 when performing services under an individual engagement, although neither party is obliged to offer or accept future work.

The statutory test requires a contract, a personal undertaking to perform work or services, and a counterparty which is not the individual’s client or customer. An overarching agreement containing only ancillary obligations is not itself a worker’s contract if it contains no undertaking to perform work. It may nevertheless govern individual engagements which are worker’s contracts. A right to cancel an accepted engagement ends the contract if exercised; it does not prevent a contract from having arisen.

The claimant was appointed as a panel member and chair of the Nursing and Midwifery Council’s Fitness to Practise Committee. His appointment was governed by overarching service agreements. He could refuse proposed hearing dates and could withdraw from an accepted hearing, but he was paid for hearings he attended.

He claimed unpaid holiday pay under the Working Time Regulations 1998. The Employment Tribunal held that he was a limb (b) worker. The Employment Appeal Tribunal dismissed the Council’s appeal: UKEAT/0258/20/RN(V).

The Council appealed on the question whether worker status required an irreducible minimum obligation to offer and accept a minimum amount of work.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the claimant was a worker under regulation 2(1)(b) of the Working Time Regulations 1998.

2. The statutory definition requires: a contract creating legally enforceable obligations; an undertaking by the individual personally to perform work or services; and a counterparty which is not the individual’s client or customer. It does not impose an additional, freestanding requirement that the parties be bound to offer and accept a minimum quantity of future work.

3. The overarching service agreements were contracts because they created ancillary mutual obligations concerning matters such as training, guidance, conduct and confidentiality. They were not, however, worker’s contracts in their own right. They imposed no obligation on the claimant personally to perform work or services, and no obligation on the Council to offer work.

4. Each accepted hearing was a separate contract. Read with the terms governing the performance of hearings, it required the claimant personally to chair the hearing and required the Council to pay the agreed fee. The Tribunal had also found that the Council was not the claimant’s client or customer. Those findings satisfied regulation 2(1)(b).

5. The ability to withdraw from an accepted hearing did not prevent a contract arising. Following [2021] STC 1956 and [2020] ICR 657, a contractual right to terminate means that the contract ends when exercised; it does not mean that no personal-service obligation was undertaken before termination. Nor is the absence of obligations in the intervals between engagements relevant to worker status during an engagement.

6. It was unnecessary to decide whether the claimant was a worker during periods when no individual hearing contract existed. The court doubted that the overarching agreements alone could confer that status.

• Court of Appeal (Civil Division) — dismissed the Council’s appeal and upheld the finding that the claimant was a worker: [2022] EWCA Civ 229.
• Employment Appeal Tribunal — dismissed the Council’s appeal from the Employment Tribunal, holding that no irreducible minimum obligation to offer and accept work was required for limb (b) worker status: UKEAT/0258/20/RN(V).
• Employment Tribunal — held that the claimant was a limb (b) worker under the Working Time Regulations 1998.