Mutuality Of Obligation And Worker Status

• Published date: 08 June 2021
• Subject Matter: Employment and HR, Employee Rights/ Labour Relations
• Law Firm: Trowers & Hamlins
• Author: Ms Emma Burrows and Nicola Ihnatowicz

The Employment Appeal Tribunal (EAT) has held in Nursing and Midwifery Council v Somerville that the absence of any obligation on a claimant to accept and perform some minimum amount of work where he had an overarching contract with the employer did not mean he was unable to establish worker status under section 230(3)(b) Employment Rights Act 1996 (ERA 1996).

The claimant was a fee-paid panel member on the Nursing and Midwifery Council's (NMC's) Fitness to Practice Committee. The NMC was not obliged to offer the claimant a minimum number of sitting dates and he was free to withdraw from dates he had accepted. When he worked he was required to provide his services personally. He sought to bring a claim for holiday pay against the NMC that required him to have worker status. The tribunal found that he was a worker as there were a series of individual contracts that arose each time that the claimant agreed to sit on a hearing and also an overarching contract in relation to the claimant's provision of his services. The NMC appealed, arguing that the lack of an irreducible minimum of obligation was inconsistent with worker status.

The EAT dismissed the appeal. It noted that the phrase "mutuality of obligation" has been used in two senses in the extensive case law on the topic. The first is in the sense of the exchange of promises or consideration from each party of a kind necessary to create any form of binding contract; the second refers to an obligation on a putative employee 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 work (it was this second sense that the NMC argued was an essential requirement for worker status). The EAT looked at the Court of Appeal's decision in Windle v Secretary of State for Justice, rejecting NMC's argument that it is authority for the proposition that an irreducible minimum of obligation is a prerequisite for "employment" status under the Equality Act 2010 (this has essentially the same scope as "worker" status under the ERA 1996).

In Windle the Court of Appeal had accepted...