The Employment Appeal Tribunal (EAT) provides clarity on the definition of a “worker”…
A worker is an intermediate category of employment status between employee and self-employed.
It has not always been easy to define the boundaries between each category. However, what is clear – in order to establish status as an employee – there must be mutuality of obligation.
If an employee is obliged to carry out work, at particular times, and the employer is obliged to pay for that work, the test will often be met.
Employment Appeal Tribunal considers relevance of mutuality of obligations to defining status as a worker?
In the case of Somerville v Nursing & Midwifery Council the Employment Appeal Tribunal (EAT) has considered the extent to which mutuality of obligation is also required to establish status as a worker.
The EAT has decided that – in order to establish a contract of any kind – there must be some mutuality of obligation. However, different types of contracts will entail different types of obligations.
The EAT found that – in order for the Claimant to establish status as a worker – it was necessary for an overarching contract to be in place, covering a series of assignments.
The NMC did not dispute a finding, by the Employment Tribunal Judge, that there was an overarching contract, but rather argued that – as the Claimant was not obliged to accept any particular assignment – there was “no irreducible minimum of obligation.”
The EAT reached the decision having established there was an overarching contract to provide services, there was no additional requirement to demonstrate minimal obligations, as may be the case for a contract of employment. As such, the EAT upheld the Employment Tribunal’s finding that the Claimant was a worker.
Learn more about the case.
What does Cartwright King say about individual employment status?
Head of Employment, Martin Cornforth comments that: “The employment status will determine what rights an individual has. For example, workers cannot claim unfair dismissal but they do have a right to take annual leave.”
If you require advice regarding employment status or need assistance in drafting contracts, our Employment Team, at Cartwright King, will be able to assist you.
All advice is correct at time of publication.