Determining whether or not a person has the protected status of a 'worker' is a highly fact-sensitive exercise. However, as was shown by a guideline Court of Appeal ruling concerning the chairman of a professional regulatory committee, close analysis of contractual relationships usually provides the best guide (Nursing and Midwifery Council v Somerville).
The case concerned a legal professional who was contracted to chair the Fitness to Practice Committee of the Nursing and Midwifery Council (NMC). With a view to establishing an entitlement to paid annual leave, he asserted that he was a worker within the meaning of the Working Time Regulations 1998. In a preliminary decision that was subsequently upheld by the Employment Appeal Tribunal, that contention was accepted by an Employment Tribunal.
Ruling on the NMC's challenge to that outcome, the Court noted that the chairman's appointment was governed by an overarching contract which stated in terms that it did not create an employment relationship and that his status was confined to that of an independent contractor. It unambiguously provided that the NMC was not obliged to provide him with work and that he was not obliged to provide his services. Even if he accepted an assignment to preside over a hearing, he made no commitment and was entitled to subsequently withdraw.
The overarching contract included certain mutually enforceable obligations concerning such matters as confidentiality and compliance with guidelines. However, the Court found that they were not the kind of obligations that would bring him within the definition of a worker. The overarching contract stopped short of requiring him to do or perform personally any services for the NMC.
In dismissing the appeal, however, the Court found that, on a day-to-day basis, the chairman provided his services to the NMC under a series of individual contracts. Such a contract arose each time he chose, in return for a fee, to accept a hearing date offered to him by the NMC. The NMC could not be viewed as merely a customer or client of his business or professional undertaking and, under each individual contract; he undertook to perform services personally.
The Court concluded that the fact that the overarching contract did not impose an obligation to work did not preclude a finding that he enjoyed worker status when he was in fact working. The individual contracts remained in force until terminated and his ability to withdraw from assignments even after he had accepted them did not change the legal position.
We can advise you on all aspects of employment law, including employment status.
Contact Emma-Louise Hewitt e.hewitt@sydneymitchell.co.uk on 08081668860 for help and guidance.
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