Nursing & Midwifery Council (appellant) -v- Somerville (respondent)

Wednesday 2 February 2022

This is an appeal by the Nursing and Midwifery Council (NMC) against the order made by the Employment Appeals Tribunal dismissing the NMC’s appeal from the ET’s decision .

The issue is whether the R, a barrister and a lay panel chair of the NWC’s fitness to practise commitee, was a limb b worker of the NMC within s,230(3)(b) of the ERA 1996 and Reg 2(1)(b) Working Time Regs 1998.

The ET found that R was not contractually obliged to accept any work offered by the NMC, nor was the NMC obliged to offer him a minimum amount of work; therefore there were no ongoing obligations during periods of non-work and as a result the overarching contract between R and NMC was not a contract of employment.

The ET further held that as R could withdraw without sanction from a hearing even after conclusion of an agreement that he would undertake a particular hearing, there was no irreducible minimum of obligation in respect of specific engagements such that R was not an employee of the NMC when working in his capacity as a lay panel chair.

The EAT granted permission to appeal on the the basis that there was some other compelling reason for doing so on the issue whether mutuality of obligations is a prerequisite for satisfying the definition of a worker status.

View hearing:

Part 1

Part 2