Employment tribunal rules chair of regulator’s disciplinary tribunal is a worker

An employment tribunal has ruled that a barrister appointed as a tribunal chair for the Nursing and Midwifery Council (NMC) is a “worker” and not the independent contractor the NMC had told him he was.  

The NMC is the regulatory body for nurses and midwives. In 2012, Mr Somerville was appointed as one of 100 panel member chairs of the NMC’s Fitness to Practise Committee. The panel chairs were contracted to serve at least 30 days per year. Mr Somerville was appointed initially for four years, extended for a further four. His written terms of engagement stated he was not an employee, but an independent contractor.

Holiday pay claim

Mr Somerville brought a claim in the employment tribunal for holiday pay. He therefore needed to show he was a worker. 

Was Mr Somerville a worker or an independent contractor?

In order to determine whether Mr Somerville was a worker, the tribunal asked three questions:

1. Was there a contract between Mr Somerville and the NMC?  
2. If so, under this contract did Mr Somerville undertake to perform personal service for the NMC?
3. Was the NMC a client or customer of a profession or business carried on by Mr Somerville?

Several factual realities of Mr Somerville’s engagement with the NMC were examined by the judge:

• Mr Somerville did not “market his services” to the NMC as a client or customer of his, but instead he was recruited (albeit by an external agency)
• Tribunal panel members were required to attend mandatory training
• Tribunal panel members had to do duty work/additional tasks if a hearing ran short
• Tribunal panel members could be formally investigated if conduct or performance concerns were raised, and action could be taken, including potentially losing their appointment
• Mr Somerville was paid at a fixed non-negotiable rate which the NMC could unilaterally reduce or vary
• Mr Somerville could choose to withdraw from cases he was assigned, he did not have access to the NMC IT systems or an NMC email address, and he had to submit his own tax returns to HMRC
• Mr Somerville could not send a substitute.  He could only notify the NMC of his unavailability and the NMC would then find a replacement
• Whether quasi-judicial independence (the need for a panel member to be independent) meant he could not be a worker  

Having examined these factors, the judge concluded that there was a contract between Mr Somerville and the NMC under which he was obliged to perform personal service. He went on to decide that the NMC was  not a client or customer of a business carried on by Mr Somerville and Mr Somerville was therefore a worker. 

Implications 

This judgment could have wide-ranging effects for regulatory bodies, such as the NMC and for those who act as panel members.  Whether a panel member is a worker in any particular case will depend on the precise contractual arrangements in place and the reality of what happens in practice. In addition, the judgment is by an employment tribunal judge and so is not binding. A spokesman for the NMC said they are considering their next steps and so we may yet see an appeal to the Employment Appeal Tribunal.

As well as an entitlement to take and be for paid statutory holiday going forwards, a previous key decision handed down by the European Court of Justice (Conley King v The Sash Window Workshop Ltd) held that workers who are led to believe they are not entitled to paid holiday are entitled on termination to a payment in lieu of any untaken statutory holiday going back for the entirety of the contract.  This is limited to four weeks per year.  Panel members with long service could therefore be awarded substantial sums if this decision is followed on appeal.

Somerville v Nursing and Midwifery Council