Worker status does not require minimum obligation on both parties (Nursing and Midwifery Council v Somerville)

When considering whether an individual has the status of a ‘worker’ for the purpose of various statutory rights, e.g., to holiday pay, there is no need for there to be an irreducible minimum of obligation on both parties, i.e., for there to be an obligation on a putative worker to accept and perform some minimum amount of work and an obligation on the putative employer to offer some work and/or pay for the same, according to the EAT.

Nursing and Midwifery Council v Somerville (UKEAT/0258/20/RN)

What are the practical implications of this judgment?

The main point to note from this judgment is that it confirms that when considering whether an individual is a ‘worker’ (as compared with an ‘employee’) for the purpose of various statutory rights (e.g., to holiday pay) there is no need to establish that there is an irreducible minimum of obligation on both parties (in the sense of an obligation on a putative worker to accept and perform some minimum amount of work for the putative employer, who is obliged to offer some work and/or pay for the same). The judgment reviews the authorities, including a passage in Uber that the respondent said had clarified things and supported its position, and holds that a minimum level of obligation is not required. All that is required for worker status is that:

• there is a contract for the provision of work or services
• under which the individual is obliged to do the work (or provide the services) personally (i.e., do it themselves), and
• the person for whom the work is done (or to whom the services are provided) must not be a client or customer of a business being run by the individual (i.e., they are not in business on their own account)

Case details

• Court: Employment Appeal Tribunal
• Judge: Heather Williams QC (sitting as a Deputy High Court judge)
• Date of judgment: 5 May 2021

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