In Somerville v the Medical Practitioners Tribunal Service and the Nursing and Midwifery Council, an Employment Tribunal has found that the claimant, who acted as a tribunal chair for the Nursing and Midwifery Council (NMC), had the employment status of a worker and was therefore entitled to holiday pay.

Facts

Mr Somerville, a barrister, was appointed by the NMC as a panel chair in 2012. His appointment letter stated: “You are not an employee or an office holder of the NMC. Your appointment as a practice committee member makes you eligible to provide services, as an independent contractor, to the NMC, as a panellist or a panel chair.”

He brought a claim against the NMC for holiday pay, on the basis that he was either an employee or a worker for the purposes of the Employment Rights Act 1996 and the Working Time Regulations 1998.

Mr Somerville also brought claims against the Medical Practitioners Tribunal Service, but these were held to be out of time and were not allowed to proceed.

ET decision

The ET found that, although there was not sufficient mutuality of obligation or control for Mr Somerville to be deemed to be an employee, in fact he was engaged by the NMC as a worker for the purposes as defined in section 230(3)(b) of the Employment Rights Act 1996 and Regulation 2(1)(b) of the Working Time Regulations 1998.

Despite the fact that the contractual documentation described Mr Somerville as an independent contractor, there was in fact an “overarching contract” between him and the NMC, in addition to individual contracts each time he accepted an assignment. The ET considered a number of factors which, taken cumulatively, suggested that Mr Somerville was engaged by the NMC as a worker and not an independent contractor. These included:

• Mr Somerville undertook to perform the work personally; there was no right of substitution.
• The work was central to one of the NMC’s main functions, namely to ensure the maintenance of standards of conduct and performance for nurses and midwives.
• Mr Somerville was required to undertake mandatory training.
• The rate of pay was fixed by the NMC and was non-negotiable.
• The complaints system for panel chairs went beyond “mere monitoring or assessment”. 

The ET found that these factors pointed to “a degree of subordination, to which an independent contractor would be unlikely to submit”, the judge noting that Mr Somerville was “semi-detached rather than detached”.

The ET concluded that Mr Somerville was a worker for the purposes of the relevant legislation, and therefore potentially entitled to statutory holiday pay.

Mr Somerville’s case will now proceed to a full hearing to determine the merits of his claim.

What to take away

When considering worker status, it is important to take into account not only the contractual arrangements but also the practical working arrangements – if the individual is sufficiently integrated into the organisation, it is likely that he or she will be a worker rather than an independent contractor, despite what the documents may say. This will not only have tax implications, but worker status also confers a number of additional rights, such as the right to paid annual leave, which was the subject of this claim.

This case could have significant ramifications for all professional regulators who engage panel members or chairs on the basis that they are independent contractors. Regulators should review their arrangements to protect against the risk that such individuals could be found to be workers, with the additional right that this status confers.

How Capsticks can help

Capsticks has significant experience in drafting contractual documentation for both workers and independent contractors, in reviewing worker arrangements and advising on claims relating to worker status. For further information on how we might assist your organisation, please contact Sian Bond, Anna Semprini or Chloe Edwards.