EAT Rules That You Do Not Actually Have to Do Any Work to Be a ‘Worker’  

The EAT has ruled that you do not actually have to do any work to be a ‘worker’ for the purposes of the Employment Right Act 1998 (ERA).

Mr. Somerville was a barrister who, amongst other things, sat on the board of the Nursing and Midwifery Council’s fitness to practice board. The Nursing and Midwifery Council (NMW) is the regulatory body for, you guessed it, Nurses and Midwifes. This was just one of Mr. Somerville’s jobs: he had a ‘portfolio’ career.

Mr. Somerville began sitting on the board in 2012, after signing an agreement that described him as an ‘independent contractor’. The agreement also stipulated that the NMW did not have to offer him any work, and he did not have to accept any work offered to him. In other words, he could opt to do no work at all.

The NMW considered him self-employed. Therefore, they did not pay him holiday pay. Mr. Somerville bought a claim for unpaid holiday pay, alleging he was an employee (or) worker of the body.

The tribunal did not consider him to have employee status. Therefore, they considered whether he could be a worker.

Who is a ‘Worker’ Under the ERA?

Worker status is a hot topic. A number of appellate court decisions have considered the issue (Uber in the Supreme Court and Addison Lee in the Court of Appeal). Some have said the area needs legislating, and those especially keen beans were awaiting an announcement in the Queen’s speech (for a new Employment Bill).

The current test (as defined by Lord Leggat in Uber and broadly mirroring the wording in the ERA), is that there must be:

  • a contract whereby an individual undertakes to perform work or services for another party.
  • an undertaking to do the work or perform the services personally.
  • a requirement that the other party to the contract is not a client or customer of any profession of business undertaking carried on by the individual.

1 and 2 are easy. Mr. Somerville was performing work for the NMW and doing so in a personal capacity. 3 was slightly more tricky. A case could be made that the NMW was a client of Mr. Somerville’s business. However, the tribunal decided that his work was more in the category of a worker who formed an integral part of the organisation, and therefore a ‘worker’ for the purposes of the ERA, as opposed to an independent contractor or a self-employed individual, providing their (external) services to an organisation.

Thus, the tribunal considered him a worker and therefore entitled to holiday pay. NMW appealed. The appeal turned largely on one point: whether ‘mutuality of obligations’, i.e. the requirement that a putative worker is obliged to do at least some work and a putative employer is obliged to offer at least some work, is a requirement for worker status. In other words, is the obligation to actually do work a requirement for worker status? Apparently not. After a careful review of the case law, the EAT decided that so long as the above three tests were met, mutuality of obligations was not necessary for worker status (but is necessary for employment status).

Comment

This is an interesting judgment. The EAT have effectively said that a putative worker does not actually have to do any work to be a ‘worker’ for the purposes of the ERA. This means that even if Mr. Somerville had done no work whatsoever for the NMW, he would still be entitled to holiday pay. The author of this article might contact the NMW to offer his services.