NMC v Somerville: Can legal professionals be classed as workers?

A few weeks ago I reported on the Supreme Court’s decision in the Uber taxi drivers case which found that 3 Uber drivers had the legal status of workers and were therefore entitled to holiday pay and other basic employment rights.

At the time of the decision there was a good deal of pontificating amongst legal commentators as to whether the principles set out in Uber would be restricted to the low skilled ‘Gig economy’ or would have wider application elsewhere.

The first judgement to grapple with this question has now arrived from the Employment Appeals Tribunal (EAT) in the case of NMC v Somerville. The case concerned a legal professional who was contracted by the Nursing and Midwifery Council (NMC) to chair their ‘fitness to practice’ hearings. Mr Somerville also had a portfolio of other jobs as a practising barrister, mediator and arbitrator. Nice work if you can get it!  

The NMC had argued that Mr Somerville couldn’t be regarded as a worker as there was no requirement for him to be offered work or to accept it when offered. The EAT explicitly rejected this argument. What counts in determining worker status is not the requirement to accept work but rather, when the work is accepted, whether the worker is under a high level of control. The EAT found that Mr Somerville was. Once he had confirmed his availability he was required to accept the work provided, perform it personally, and according to the particular standards and requirements of the NMC.

The judgement also found that the fact that Mr Somerville paid his own tax was not a relevant factor in considering his status. This is an interesting point as tax status is a factor which has been widely relied upon by employment lawyers in considering this issue.

The Somerville case is significant in demonstrating that worker status can exist at both ends of the employment food chain and is not restricted to the Gig economy. It is further proof, if any were needed, that employers should be extremely cautious in classing staff as self-employed. The case law is this area is flowing fast in one direction. 

This blog has been prepared by Mark Alaszewski, Solicitor, didlaw.