Thread by @JasonBraier

1/ NMC v Somerville: EAT upholds ET's decision that a member of the NMC's Fitness to Practice panel was a worker under an umbrella contract connecting individual contracts entered into each time he sat. bailii.org/uk/cases/UKEAT… #ukemplaw

2/ This appeal emanates from the same claim as that in yesterday's Somerville thread. Whilst yesterday's thread dealt with whether a holiday pay claim was brought in time, today's thread concerns a separate judgment on worker status.

3/ S was a NMC FTP committee panel member as well as an MPTS panel member. Whilst there were issues of time in the claim against the latter (see

https://twitter.com/JasonBraier/status/1389987612446892033

) there were no such issues as against the NMC.

4/ Hence the NMC appeal focuses solely on status - was S a worker under s.230 ERA & Reg 2 WTR in order to be able to bring holiday pay claims under either of those pieces of legislation? To remind, these were claims for pay for leave taken.

5/ The ET held S was a worker under a series of individual contracts & an umbrella contract between the parties but without any irreducible minimum of obligation for employment status. NMC didn't challenge the contractual relationship but the ultimate finding of worker status.

6/ That challenge focused on 2 issues: (i) that an absence of irreducible minima of obligation was fatal to a finding of worker status, & (ii) the ET's finding the NMC wasn't S's client/customer was in error for considering irrelevant factors/not considering relevant factors.

7/ Delving a little further into the facts, apart from his NMC & MPTS work, S had a wide portfolio of work, sitting on a wide range of dispute panels & as a magistrate, as well as practising as a barrister, arbitrator & disciplinary/grievance investigator & hearing officer.

8/ S was appointed as an NMC FTP chair in 2012, signing a service agreement which expressed that it didn't create an employment relationship & that there was no obligation on NMC to request S to provide services nor on S to provide them when requested to do so.

9/ The Service Agreement provided S would have independent contractor status & had various obligations including confidentiality requirements & training obligations as well as obligations to notify as early as possible any need to withdraw from a panel on which they were booked.

10/ S was required to provide availability for 6 months * was then notified when required for a hearing. He was paid even if a hearing was cancelled, with all fees fixed by the NMC & non-negotiable. S wasn't permitted to provide a substitute & had personal responsibility for tax.

11/ At paras 45-77, the EAT gives a lengthy but very useful summary of the case law on the irreducible minimum of obligation, traversing the ground from Nethermere to Uber. It's a passage worth bookmarking on this particular topic.

12/ Particular attention is paid to the EAT's decision in Cotswold Developments v Williams, with the EAT carefully analysing the judgment to show how the ratio includes that no irreducible minimum of obligation is required to show worker status (as opposed to employment status)

13/ The EAT found that the authorities provided for no requirement of an irreducible minimum of obligations to establish worker status. Heather Williams QC wasn't persuaded that the Sup Ct's decision in Uber provided otherwise.

14/ Moving on to the case law on the client/customer exception to worker status, the EAT focused principally on the active marketing/integration considerations in the Sup Ct's judgment in Bates van Winkelhof, as well as the CA's judgment in Westwood.

15/ The NMC complained the ET failed to take account of the use of 'independent contractor in the Service Agreement, S's work as a barrister, mediator & arbitrator & panel membership for other regulators, & S's arrangements with HMRC.

16/ The NMC also complained the ET took account of the importance of FTPs & that convening FTPs allowed the NMC to discharge its statutory duty, but ought not to have done so.

17/ The EAT noted the limits to an appellate court's interference with findings on status, found the EJ had in fact taken account of considerations NMC complained had been left out & that he was entitled to consider them the way he did alongside the 2 aspects in the tweet above.

18/ Perhaps the most useful point to note from that analysis was the confirmation of the appropriateness of the EJ considering S's tax treatment as a neutral factor because workers are a subset of the self-employed rather than of those with a contract of service.

19/ So an interesting judgment on worker status. The 1st EAT reference to Uber, I think (though the CA has referred to it already in the Addison Lee permission judgment) & perhaps one that will be appealed albeit the parts of the ET decision not appealed make that difficult here.