Fitness to Practise Panellists are Workers

Is a panel member of a Fitness to Practise Committee of a professional regulatory body who undertakes hearings a worker within the meaning of regulation 2(1) of the Working Time Regulations 1998?

Mr Somerville, a chair and panellist for the Nursing & Midwifery Council (NMC), believed  he was and claimed unpaid holiday pay on the ground that he was a worker and entitled to be paid annual leave under the Regulations.

Following a preliminary hearing to decide the issue, an Employment Tribunal determined that Mr Somerville was a worker within the meaning of limb (b) of the definition of worker in regulation 2(1) of the Regulations as there was an overarching contract between the claimant and the Council, as well as individual contracts when hearings were assigned to him and under which he agreed to provide his services personally.

An Employment Appeal Tribunal and now the Court of Appeal have dismissed NMC appeals and upheld that decision: Nursing & Midwifery Council v Somerville [2022] EWCA Civ 229: Moylan, Lewis, Elizabeth Laing LJJ

The decision, taken on well-established principles, cannot really have come as any great surprise to the NMC or other watching regulators who will be carefully considering their budgets.  No doubt the regulators will be inundated with claims from chairs, panellists – and perhaps others on similar contracts – for outstanding holiday pay.

Giving the unanimous judgment of the court, Lewis LJ said that a worker was defined to mean an individual who had entered into, or worked, or had worked, under one of two types of contract. The first was a contract of employment. The second was:

“(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.”

The employment tribunal found that the claimant and Council entered into a series of individual contracts. Each time the Council offered a hearing date and the claimant accepted it, he agreed to attend that hearing and the Council agreed to pay him a fee.

By those individual agreements, and the obligations contained in the 2012 and 2016 Agreements setting out how the claimant was to carry out the task of conducting a hearing, the claimant “agreed to provide his services personally”.

The ET went on to find that the Council was not the client or customer of a profession or business carried on by the claimant.

Those findings were sufficient to entitle the employment tribunal to conclude that the claimant was a worker in that he entered into (and had worked under) a contract whereby he undertook to perform services personally for the respondent and the respondent was not a client of his business or professional undertaking.

That conclusion was consistent with the decision of the Supreme Court in Uber.[1]

Decisions of employment tribunals had to be read fairly and as a whole. It was clear from the decision that the employment tribunal understood that there had to be a contract in existence and also that it had to include certain types of obligations in order to be a contract of employment or a contract falling within limb (b) of the definition of worker. That is why it structured its reasons as it did, by asking first if there was a contract in existence, then, secondly whether the overarching and individual contracts were contracts of employment and then, if not, whether they were contracts to do or perform services personally.

That was also reflected in para. 218 of its decision where it set out the three requirements that must be met for a contract to fall within limb (b) of the definition of workers’ contracts.

So if fitness to practise panellists and chairs are “workers” within the meaning of the regulations, may that affect their independence also? How will registrants feel about ut?  After all, it is their money which is funding all this regulation.

The implications of this decision may be wide reaching and will need careful consideration by the regulators in terms of (i) their own budgets and the ability to catch up with enormous backlogs of outstanding cases and (ii) the impartiality with which their panels are now viewed.

Perhaps it is time again to consider a single arms-length adjudication system composed of a variety of specialist fitness to practise panels.

[1] Uber BV and Ors  v Aslam & Ors [2021] UKSC 5