Nursing and Midwifery Council v Somerville

The Court of Appeal held that the claimant was a "worker" within the meaning of regulation 2(1)(b) of the Working Time Regulations 1998 when he undertook particular hearings. The court analysed the distinction between an overarching appointment agreement and the individual contracts formed when a hearing date was accepted. It concluded that the overarching agreements were contracts but did not themselves impose an obligation on the claimant to perform services personally and so were not worker's contracts. However, each time the claimant accepted attendance at a hearing an individual contract arose under which he undertook to perform services personally and for which he was paid; those individual contracts satisfied limb (b) of regulation 2(1).

The court rejected the respondent's submission that an "irreducible minimum of obligation" (in the sense of a standing obligation to accept and perform some minimum amount of future work) is a prerequisite to worker status under regulation 2(1)(b). It relied on the analysis in Uber and Professional Game Match Officials Ltd v Revenue and Customs Commissioners to explain that the irreducible minimum concept is relevant to determining whether an overarching contract creates continuous employment or worker status in gaps, but does not prevent an individual assignment contract from amounting to a worker's contract when services are in fact undertaken.

Background and procedural posture. The claimant was appointed as a panel member and chair to sit on Fitness to Practise Committees of the Nursing and Midwifery Council under written panel member services agreements (2012 and 2016 Agreements). He could be allocated hearing dates, but neither the Council was obliged to offer hearings nor the claimant obliged to accept any particular hearing; the claimant could withdraw from an allocated hearing without sanction. By claim form (20 July 2018) he sought unpaid holiday pay under the Working Time Regulations 1998, claiming worker status. A preliminary issue (worker status) was decided at first instance by an employment tribunal (Employment Judge Massarella), which found the claimant a worker. The Council appealed to the Employment Appeal Tribunal which dismissed the appeal (UKEAT/0258/20/RN(V)). The Council appealed to the Court of Appeal.

The nature of the claim/application. The claim was for unpaid holiday pay under the Working Time Regulations 1998, the preliminary question being whether the claimant was a "worker" for the purposes of regulation 2(1).

Issues framed by the Court. (i) Whether an irreducible minimum of obligation (a standing obligation to accept and perform some minimum amount of future work) is a prerequisite for worker status under regulation 2(1)(b); (ii) whether the mere existence of a contract between the parties is relevant to determining whether any such irreducible minimum of obligation exists.

Facts relevant to the determination. The 2012 and 2016 Agreements defined services, imposed compliance and training obligations, and set fees for hearings, but expressly provided that the Council was not obliged to request services and the panel member was not obliged to provide them. Practically, hearings were allocated after the claimant supplied available dates; he could refuse or withdraw from allocated hearings and was paid a specified fee when he attended; cancellation rules and payments on cancellation are described in the tribunal's findings.

Court’s reasoning and conclusions. The court parsed the statutory definition in regulation 2(1)(b): (1) there must be a contract; (2) the contract must be one whereby the individual undertakes to perform work or services personally; and (3) the other party must not be a client or customer of a profession or business carried on by the individual. The court held that the overarching Agreements were contracts but did not contain the necessary obligation by the claimant to perform services personally and therefore were not worker's contracts in themselves. By contrast, each individual agreement formed when the claimant accepted a hearing required him to provide services personally (and the Council to pay), and therefore each such agreement satisfied regulation 2(1)(b). The court rejected the submission that an additional, standing "irreducible minimum" obligation to accept future work was a precondition to worker status under limb (b); cases addressing irreducible minimum (for example Nethermere, Carmichael) primarily concerned whether an overarching relationship created continuous employment in gaps, not whether a single engagement can be a worker's contract. The court endorsed the approach in Uber and PGMOL: the ability to withdraw or cancel an engagement does not negate that a contract to perform services came into existence when the individual accepted the assignment or otherwise manifested the relevant undertaking on the particular facts.

Subsidiary findings. The court accepted the tribunal's finding that the Council was not a client or customer of a business or profession carried on by the claimant; it also accepted that neither the overarching nor the individual contracts amounted to contracts of employment, but the individual assignment contracts were sufficient for worker status for the periods in which services were performed. The court did not decide entitlement or quantum of holiday pay beyond the preliminary worker-status question.

Appeal dismissed. The Court of Appeal held that the claimant was a worker under regulation 2(1)(b) of the Working Time Regulations 1998 in respect of individual contracts formed when he accepted hearings. The court reasoned that an overarching appointment agreement which imposed no obligation to do work does not prevent individual assignments from being worker's contracts, and that there is no requirement that a distinct irreducible minimum obligation to accept future work must exist for limb (b) to be satisfied.

Employment tribunal (preliminary hearing on worker status) found claimant a worker (Employment Judge Massarella). Employment Appeal Tribunal dismissed the Council's appeal (UKEAT/0258/20/RN(V)). The Council's appeal to the Court of Appeal was heard and dismissed: [2022] EWCA Civ 229.