Somerville: Impact on regulators likely to run to millions of pounds
The Court of Appeal 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.
Robin Somerville said the ruling could cost regulators millions of pounds in claims across professional tribunals, including the Solicitors Disciplinary Tribunal and Bar Tribunals & Adjudication Service.
In 2020, an employment tribunal held that he was a worker under the Employment Rights Act 1996, despite being told that he was being appointed as an independent contractor.
While Mr Somerville had a wide-ranging “portfolio of work”, he was “semi-detached rather than detached”. The Employment Appeal Tribunal (EAT) upheld this decision last year.
Employment Judge Massarella noted that, since 2012, when Mr Somerville was appointed to the NMC’s fitness to practice committee, he had accumulated several other roles, including 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).
The employment tribunal found 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.
Further, 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 argued 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 said it 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.
Lord Justice Lewis, giving the ruling of the Court of Appeal, said these findings were “sufficient to entitle the employment tribunal to conclude that the claimant was a worker in that he entered into (and had worked under) a contract whereby he undertook to perform services personally for the respondent and the respondent was not a client of his business or professional undertaking.
“There is no need, and no purpose served, in seeking to introduce the concept of an irreducible minimum of obligation in the way defined by the respondent.”
The conclusion was also consistent with the decision of the Supreme Court in Uber, Lewis LJ added: “The fact that an overarching contract does not impose an obligation to work does not preclude a finding that the individual is a worker when he is in fact working.”
Mr Somerville told Legal Futures: “This is the third time I have been vindicated and the NMC has lost.
“In my view, this is a dismal use of nurses and midwives’ resources to deprive dedicated panel chairs and members of their basic legal rights like holiday pay and an awful departure from the NMC’s asserted values of being fair, kind and collaborative – one rule for them and another for nurses and midwives.”
Subject to a successful appeal to the Supreme Court, he went on, the ruling meant that panel chairs and members for all other regulators operating similar models – such as the Solicitors Disciplinary Tribunal, Bar Tribunals and Adjudication Service, General Medical Council and the Health and Care Professions Council – would all be entitled to the rights conferred by worker status.
“Following the recent Pimlico Plumbers decision, these rights, including holiday pay, may stretch all the way back, many years, for as long as they have been sitting. The net historic and future impact on the regulators is likely to be millions of pounds.”
Mr Somerville praised his counsel, Jeffrey Jupp of 7BR and Matt Jackson of Albion Chambers, and solicitor Mike Cain of Leigh Day, for their “hard work, expertise and diligence”.
I comment as a panel chair. Under the terms of our contract, we agree to be paid a set daily fee, stated in the contract, currently £340 for a chair. So if we accept a hearing for, say, five days, we know in advance the total recompense will be £1700 for that hearing. If we think the pay is too low, eg if we have a better remunerated offer of an engagement elsewhere, we can choose not to accept the hearing. The point is that Mr Somerville presents the position as if he has been underpaid and exploited by the denial of additional money over and above the contractually set daily fee thereby unfairly constricting his total recompense. But he’s always known and signed up to the total recompense on offer under the terms of this contract for the eight years he accepted work under it before bringing this claim. He’s clearly an intelligent man; he can hardly claim he was blind to the terms of total recompense when he accepted both the overall contract and each individual hearing engagement. If regulators had simply stated explicitly that the fee included holiday pay, there could be no claim for additional fees now. There’s a very strong argument that this daily fee has always in any event implicitly encompassed holiday pay. And that’s the position going forward; if the daily fee explicitly includes holiday pay, even while remaining at the same current total rate, then no additional costs to the regulators will accrue. So there’s no forward looking point of principle or benefit at stake here. This leaves the after-the-event claim for backdated holiday pay. Again, the position is that under this contract we have always known in advance what we will be paid if we accept the invite to sit on a hearing. Sitting as a panellist for eight years and then making a claim that you’ve somehow been deprived of your rights under a contract clearly defining the total recompense and which you willingly entered into is at best unedifying. At worst it is an opportunistic greedy cash grab. The payments Mr Somerville has already received are, per day, far in excess of a nurse’s daily pay. The payment to panellists of back holiday pay will cost the NMC 10s of thousands of nurses registration fees. The situation is not to be applauded; it is a deeply regrettable exploitation of a legal loophole at high cost to hundreds of thousands of registered professionals made for purely personal gain.