Can statutory employment rights only be claimed by employees and workers?
Statutory employment rights may only be claimed by employees and workers. Where the employment status of the individual is unclear a number of factors will be taken into account including whether the parties are subject to mutual obligations. In the case of Nursing and Midwifery Council v Somerville the issue was whether worker status could be established where there was no obligation to provide or perform any minimum amount of work even if there was an overarching contract in place.
Mr Somerville claimed that he had been entitled to accrued holiday pay as a worker
Mr Somerville, a barrister, had been appointed for a fixed period as a fee-paid panel member on the NMC’s Fitness to Practice Committee. The terms of his appointment provided that NMC was not obliged to offer him any sitting dates and he did not have to accept any. He was even free to withdraw from dates he had accepted. However, when he did work, he was required to provide his services personally. He claimed that he had been entitled to accrued holiday pay as a worker in respect of the appointment.
It was held that Mr Somerville was a worker
It was held that whilst Mr Somerville was not an ‘employee’ he was a ‘worker’ for the purposes of holiday pay entitlement under the Working Time Regulations 1998. The lack of any contractual obligation to provide or accept work did not prevent him being a worker. Case law had established that mutuality was relevant but not decisive in assessing employment status. In some cases, it might indicate genuine independence here though the circumstances and the overarching contract suggested otherwise.