Somerville: Basic statutory duty
The Employment Appeal Tribunal (EAT) has upheld a ruling that a barrister who sat as a tribunal chair for the Nursing and Midwifery Council (NMC) was a ‘worker’ and entitled to sickness and holiday pay.
The judgment that Robin Somerville was a worker under the Employment Rights Act 1996, despite being told that he was being appointed as an independent contractor, could open the way for thousands of similar claims across professional tribunals.
The NMC challenged the conclusion last summer by an employment tribunal that, while that Mr Somerville had a wide-ranging “portfolio of work”, he was “semi-detached rather than detached”.
Employment Judge Massarella noted that, since 2012, when Mr Somerville was appointed to the NMC’s fitness to practice committee, he had accumulated a portfolio of work.
This included, among other roles, being an accredited mediator and arbitrator, a chair of employee disciplinary and grievance hearings, an independent investigator into disciplinary matters, an ombudsman for the Financial Ombudsman Services, and a magistrate.
Mr Somerville, who was called to the Bar in 2012, completed his pupillage in 2018. The following year he was appointed a judge of the First-tier Tribunal (Social Entitlement Chamber).
Heather Williams QC, sitting as a deputy High Court judge at the EAT, said the NMC did not challenge the finding that there were a “series of individual contracts between the parties” each time Mr Somerville agreed to sit at a hearing, as well as an “overarching contract between them” in relation to his services as a panel chair.
Mr Somerville, in turn, did not challenge the finding that he was not an employee under a contract of service and there was no “irreducible minimum of obligation”, since the barrister was not obliged to agree to a minimum number of sitting dates and could withdraw from dates he had accepted.
The NMC appealed on the grounds that this absence of an “irreducible minimum” had been found in the case law to be incompatible with worker status.
For the barrister to be a ‘worker’, the NMC must not be a “client or customer” of the business carried out by him and at first instance the judge said he was not – Mr Somerville did not “market his services” to the NMC, but was recruited via a structured exercise.
The NMC argued that the tribunal had “failed to consider relevant factors” in reaching this decision.
Ms Williams ruled an irreducible minimum was “not a prerequisite” for satisfying the definition of worker status in circumstances where there was an overarching contract.
“The absence of an irreducible minimum of obligation could be relevant to the question of whether the client/customer exception applied, but it was not necessarily fatal to a conclusion of worker status.
“Further, that in considering the client/customer exception in this case, the tribunal made no error of law; the weight that it attached to particular factors was a matter for its evaluation”.
Ms Williams said the “one aspect” of Judge Massarella’s ruling that gave her pause was the judge’s characterisation of Mr Somerville as “not marketing his services, because he did not advertise or make direct approaches to clients”.
She said that “given the range of professions, businesses and working relationships” to be considered under the statutory test, “too narrow a focus upon a concept of whether or not services are ‘marketed’ in a conventional sense may prove to be unhelpful in some cases.”
Mr Somerville, who represented himself at the EAT, told Legal Futures: “It is not clear to me why the NMC want to spend nurses’ registration fees on expensive legal costs to avoid their basic statutory duty to pay panel members their holiday and sick pay.”
Andrea Sutcliffe, the NMC’s chief executive and registrar, said: “We’ve received the judgment from the EAT and we are reviewing it carefully to inform our next steps.
“The legal costs of our appeal were covered by our insurer and we are committed to making the best use of registrants fees, which is why we have sought legal clarification from the court on what is a very technical, complex and rapidly developing point of employment law so we can be satisfied we are applying this correctly.”
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