1/ NMC v Somerville: Worker status exists when undertaking to do work personally for someone who isn't a client/customer. There's no additional irreducible minimum of obligation required. A mere right to withdraw is immaterial. bailii.org/ew/cases/EWCA/… #ukemplaw
2/ @robinsomerville was appointed as a panel member & chair of an NMC Fitness to Practise Committee. On a WTR holiday pay claim, the ET found S was a limb (b) worker given the existence of an overarching contract with the NMC & individual contracts when hearings were assigned.
3/ The ET found S agreed to provide services personally. It wasn't put off of finding S a worker by the fact that he was contractually able to refuse to accept any hearing date or to cancel his attendance at a hearing by notifying the NMC he was no longer available.
4/ The appeal concerned the part played by the irreducible minimum of obligation in determining whether worker status is made out. NMC's position was that S wasn't obliged to do any work or perform any services & hence couldn't be a worker.
5/ S agreed the overarching contract carried no obligations to work per se, but asserted that on accepting a hearing both the overarching & individual assignment contracts provided for obligations related to the hearing.
6/ The ET rejected S's submission that he was an employee under the individual contracts. It found insufficient mutuality of obligation given S's ability to withdraw without sanction after an individual agreement to sit was concluded but before the hearing. S didn't appeal this.
7/ The CA noted, obiter, that (albeit not appealed) this finding was inconsistent with the subsequent CA decision in the referees case, where the CA found the ability to withdraw immaterial - it's the fact of withdrawal that makes a difference. Mutuality exists until then.
8/ The ET found S a worker. In doing so the ET explained with clarity why the levels of integration & subordination were such that NMC wasn't S's client or customer & hence S wasn't excluded from worker status on such a basis.
9/ The NMC lost before the EAT & appealed on the basis the ET erred in finding an irreducible minimum of obligation not a prerequisite for worker status & wrongly suggested a contract's existence relevant to determining whether there was such an irreducible minimum.
10/ NMC's position was each contract had to include an irreducible minimum before it could fall within the scope of worker status. Absent an obligation to perform a minimum amount of work, NMC said a contract couldn't fall under the definition.
11/ NMC also suggested that you couldn't read the individual contracts without reading them together with the overarching contracts & that as the latter included no obligation to offer or accept work, the former couldn't fall under limb (b).
12/ In upholding the ET's decision, the CA noted the consistency between S's case & Uber as regards reliance on individual contracts to make out worker status when there wasn't the work-wage bargain under an overarching contract governing the relationship.
13/ You'll recall in Uber the SC found the drivers working under a contract from when they turned on the app, because at that point they were required to be generally willing & available to accept a job. The fact a driver could turn a job down wasn't fatal to worker status.
14/ The CA in Somerville noted that NMC's reliance on Uber relied on the parts of the judgment concerned with the 'time' the contract arose & not whether one arose at all. There was no need for a precedent obligation to provide/accept work before worker status could be found.
15/ The CA rejected NMC's argument that the lack of obligations to offer/accept work under the overarching contract precluding a finding S was a worker when in fact working. The referee decision made that clear re employment & the same applied to workers.
16/ The right to withdraw was immaterial as well. As per the referee case, S entered into contracts to work. Those contracts existed unless/until terminated. A right to terminate changed nothing about that analysis.
17/ Finally, the CA rejected NMC's suggestion the ET had wrongly found the existence of a contract relevant in itself to whether there was an irreducible minimum of obligations. That's not what the ET found - it had looked at the contract to determine the status question.
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1/ Fentem v Outform Emea: where the employee gives notice of termination & the employer later relies on a PILON clause to cut short the expiry of notice, the employer's act isn't a dismissal under s.95 ERA. The EAT decision in Hamblin is binding bailii.org/uk/cases/UKEAT… #ukemplaw
2/ In April 2019, F resigned on notice, giving 9 months' notice of termination of his employment. In December 2019, OE invoked a PILON clause, terminating F's employment early & paying him the salary due for the remainder of notice (though excluding bonuses that would be due).
3/ F brought an unfair dismissal claim in respect of the December termination. The ET held itself bound by the EAT decision in Marshall (Cambridge) Ltd v Hamblin that termination of a post-resignation period of notice by way of PILON didn't amount to a dismissal under s.95 ERA.
AG v Taheri - EAT makes a restriction of proceedings order of indefinite duration under s.33 ETA against a serial claimant, who applies for jobs & brings discrimination claims when turned down, hoping to extract a small settlement. bailii.org/uk/cases/UKEAT… #ukemplaw
2/ Mr Taheri is one of those well-known serial litigants. He applies for a job, gets turned down & then brings a claim for race, age &/or disability discrimination in the hope of making some money out of it, valuing the claim in the thousands but settling in for hundreds.
3/ He'd never succeeded in any that had gone to hearing, often found vexatious, four times struck out plus a few times subject to deposit orders, with the claim struck out on not paying.
1/ Kocur v Angard Staffing Solutions: CA holds reg 13 of the Agency Worker Regs gives agency workers a right to be informed of vacancies in the same terms as permanent workers but not a right to apply. bailii.org/ew/cases/EWCA/… #ukemplaw
2/ The case concerned an employment agency providing agency worker staff exclusively to the Royal Mail. When vacancies arose in the Leeds sorting office, they were put on the internal noticeboard for all to see, but permanent employees had the 1st chance to apply.
3/ K sought to argue that this was in breach of the right under reg 13(1) of the AWR, which provides:
1. Water v The Mote Cricket Club: EAT upholds ET's decision that a cricket club groundsman operating through his own business was neither an employee nor a worker bailii.org/uk/cases/UKEAT… #ukemplaw
2. Mote employed a groundsman for many years until 2016. He had licence to live in residential accommodation as part of his contract. When he left, Mote engaged a self-employed contractor. At about that time, W obtained became shorthold tenant of the groundsman's property.
3. W was a member of the cricket club. In 2011, he set up a gardening & grounds business. 1 of his jobs was maintenance of another cricket pitch. When he ended the tenancy, he based his business at Mote & kept tools there (bringing in a shipping container to do so).
1/ Shittu v South London & Maudsley NHS: Important finding (obiter) that the loss of chance test remains the test re compensation for unfair/discrim dismissal & the counterfactual chance of a fair dismissal. Perry v Raley doesn't change that. assets.publishing.service.gov.uk/media/6202b0d0… #ukemplaw
2/ S was a complaints manager for SL&M NHS Trust. He'd been diagnosed with bowel cancer in 2009 & resigned in Aug 2016. He brought claims for constructive unfair dismissal, a couple of bases of automatic unfair dismissal & loads of disability discrim & victimisation claims.
3/ Ultimately of the very many claims brought, he succeeded on 2 claims re 1 act: he'd complained about not being paid when off work for a post-cancer check-up & complained also about a failure to investigate that complaint. It was 1 of the reasons he resigned.
1/ Arvunescu v Quick Release: An interesting consideration of s.112 EqA (aiding a contravention) & the width of COT3 wording, as well as an application of Cox v Adecco to find a s.112 claim albeit not expressly pleaded. assets.publishing.service.gov.uk/media/62029aca… #ukemplaw
2/ A worked for QR for a month before being dismissed. He brought a race discrim claim but that was ultimately compromised under a COT3 in 2018 with the following widely drafted term as to what was being compromised:
3/ Also in early 2018, A applied for a job with a wholly-owned subsidiary of QR. He was rejected. Subsequent to the COT3 being signed, A brought a victimisation claim against QR in re that rejection. A PH was held to consider whether the claim should be struck out.