![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Nursing and Midwifery Council v Somerville [2022] EWCA Civ 229 (25 February 2022) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2022/229.html Cite as: [2022] WLR(D) 101, [2022] IRLR 447, [2022] ICR 755, [2022] EWCA Civ 229 |
[New search]
[Context]
[View without highlighting]
[Printable PDF version]
[View ICLR summary: [2022] WLR(D) 101]
[Buy ICLR report: [2022] ICR 755]
[Help]
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HEATHER WILLIAMS Q.C. SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
UKEAT/0258/20/RN(V)
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE LEWIS
and
LADY JUSTICE ELISABETH LAING
____________________
NURSING AND MIDWIFERY COUNCIL |
Appellant |
|
- and - |
||
![]() | Respondent |
____________________
Jeffrey Jupp and Matt Jackson (instructed by Leigh Day) for the Respondent
Hearing date: 2 February 2022
____________________
Crown Copyright ©
Covid 19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email and release to Bailii. The date for hand-down is deemed to be on 25 February 2022.
Lord Justice Lewis:
INTRODUCTION
THE RELEVANT STATUTORY PROVISIONS
""worker" means an individual who has entered into or works under (or, where the employment has ceased, worked under) –
(a) a contract of employment; or
(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;
and any reference to a worker's contract shall be construed accordingly."
THE FACTS
Fitness to Practise Committees
The Claimant's Appointment
"11. The panel member shall provide the services as requested from time to time by the NMC.
11.1 The NMC shall provide the panel member with reasonable notice of any request to provide the services. If the panel member cannot provide the services on the dates and at the time so notified, the panel member shall promptly inform the requesting person or department at the NMC of that fact.
11.2 The NMC and the panel member agree and acknowledge that:
11.2.1 the NMC is not obligated to request the panel member to provide the services;
11.2.2 the panel member is not obliged to provide the services if so requested by the NMC; and
11.2.3 the panel member has no right to provide the services; and
11.2.4 where the NMC requests the panel member to provide the services in respect of the case and the panel member agrees to provide those services the panel member will use all reasonable endeavours to attend the hearing of that case on each and every day on which it is heard including where it is adjourned for any reason and concluded later than originally anticipated."
11.4 The panel member shall be available on reasonable notice to provide any information, advice or assistance about the services as the NMC may reasonably required."
"The Panel Member will attend hearings and meetings of a Practice Committee of the Nursing and Midwifery Council and will carry out the functions of a Panel Member of that committee in accordance with the provisions of the Nursing and Midwifery Order 2011 and the Nursing Midwifery (Fitness to Practise) Rules 2004."
"will provide services (where they have agreed to do so) at such locations within the UK as are necessary for the proper performance of the Services in order to meet the reasonable requirements of the NMC".
"inform the Panel Support Team at the earliest opportunity if they have to withdraw from a panel to which they have been booked. It is expected that this would be for exceptional reasons only."
The System for Booking, Cancelling and Withdrawing from Hearings
The Findings of the Employment Tribunal
"190. In relation to the former, the NMC offered to appoint the claimant to the FTP panel as a chair for a period of four years; the claimant accepted in writing. The terms of the contract are to be found in the letter of appointment, the PMSAs [that is the 2012 and 2016 Agreements] and its schedules and appendices. Those terms undoubtedly included some provisions which amounted to legally enforceable rights and obligations. These are set out in my findings above (paras 98 and 99)."
"191. In relation to the latter, each time the NMC offered the individual, and the Claimant accepted, he agreed to sit on the hearing, for which the NMC agreed to pay him a fee."
"unambiguously provide that the NMC was not obliged to ask the Claimant to provide services, and the Claimant was not obliged to provide them, if asked to do so".
"210. Once an agreement that the Claimant would undertake a particular hearing had been concluded, if the Claimant did the hearing, the NMC was obliged to pay him; even if the hearing was cancelled, there was an obligation on the Respondent to pay him: 100% of the fee (pre-2017); or 50% of the fee (post-2017). However, as I have already found, there was no equivalent obligation on the Claimant: he was free to withdraw from the hearing, even after the agreement had been concluded."
"213. Clark v Oxfordshire Health Authority is authority for the proposition that an employment contract cannot exist in the absence of "mutual obligations subsisting over the entire duration of the relevant period". In respect of each individual assignment, that period began when the Claimant accepted the offer of the assignment. The NMC was not free to cancel to withdraw without incurring all or part of the fee; to that extent there was some obligation on it. But because the Claimant could withdraw, without sanction, after the conclusion of the agreement and before the hearing, I conclude that there was insufficient mutuality of obligation to give rise to an employment relationship by reference to the individual assignment contracts."
"… In my judgment, the [tribunal] erred in law in deciding that the ability of the either side to pull out before a game negated the necessary mutuality of obligation. The authorities which I have referred to above… show that that is not the correct legal analysis. The correct analysis is that if there is a contract, the fact that its terms permit either side to terminate the contract before it is performed, without breaching it, is immaterial, the contract subsists (with its mutual obligations) unless and until it is terminated by one side or the other".
"218. To qualify as a worker, three conditions must be satisfied:
218.1. there must be a contract between the claimant and the NMC;
218.2. the contract must be one in which he undertakes to perform work personally for the NMC;
"218.3. and the NMC must not be a client or customer of a profession or business carried on by the claimant."
"219. I have already found that there was an overarching contract between the claimant and the NMC, as well as individual contracts when work was assigned, under which the claimant agreed to provide his services personally, although I have concluded that neither were contracts of employment."
"242. I also considered the relevance of mutuality of obligation. Although I have conclude that there was insufficient mutuality of obligations to give rise to a contract of employment, there were legal obligations on each side sufficient to create the necessary contractual status. In the circumstances I have described, I do not consider that the absence of mutual obligations to offer/accept a minimum amount of work to be incompatible with worker status.
243. I have already concluded that the Claimant entered into a contract with the NMC, whereby he undertook to perform work/services for it. Standing back and looking at the overall picture, when I have regard to the method of recruitment, the factors I have identified above which, cumulatively suggest a significant degree of integration into the operation, together with the element of subordination in the conduct/performance procedure and the absence of any negotiation in respect of pay. I am satisfied that the NMC's status was not by virtue of that contract that of the Claimant's client or customer. I have concluded that he was sufficiently integrated into the NMC's operations, such that he was, to borrow the language of Elias J. in James v Redcats, 'semi-detached' rather than 'detached', as an independent contract would be.
244. Accordingly I conclude that the Claimant was a worker of the NMC within the meaning of s.230(3)(b... [1996 Act] and Reg 2(1)(b) [of the Regulations]."
The Appeal to the Employment Appeal Tribunal
THE APPEAL
1. The employment tribunal erred in finding that an irreducible minimum of obligation is not a prerequisite for worker status within the meaning of limb (b) of the definition of worker in regulation 2(1) of the Regulations; and
2. The employment tribunal was wrong in suggesting that the existence of a contract between the parties was relevant to the question of determining whether there was an irreducible minimum of obligations.
THE FIRST ISSUE - IRREDUCIBLE MINIMUM OF OBLIGATION
Submissions
Discussion
"(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".
"41. Limb (b) of the statutory definition of a "worker's contract" has three elements: (1) a contract whereby an individual undertakes to perform work or services for the other party; (2) an undertaking to do the work or perform the services personally; and (3) a requirement that the other party to the contract is not a client or customer of any profession or business undertaking carried on by the individual."
"90. The claimant drivers in the present case had in some respects a substantial measure of autonomy and independence. In particular, they were free to choose when, how much and where (within the territory covered by their private hire vehicle licence) to work. In these circumstances it is not suggested on their behalf that they performed their services under what is sometimes called an "umbrella" or "overarching" contract with Uber London - in other words, a contract whereby they undertook a continuing obligation to work. The contractual arrangements between drivers and Uber London did subsist over an extended period of time. But they did not bind drivers during periods when drivers were not working: rather, they established the terms on which drivers would work for Uber London on each occasion when they chose to log on to the Uber app."
91. Equally, it is well established and not disputed by Uber that the fact that an individual is entirely free to work or not, and owes no contractual obligation to the person for whom the work is performed when not working, does not preclude a finding that the individual is a worker, or indeed an employee, at the times when he or she is working: see eg McMeechan v Secretary of State for Employment [1997] ICR 549 ; Cornwall County Council v Prater [2006] EWCA Civ 102; [2006] ICR 731 . As Elias J (President) said in James v Redcats (Brands) Ltd [2007] ICR 1006, para 84 :
"Many casual or seasonal workers, such as waiters or fruit pickers or casual building labourers, will periodically work for the same employer but often neither party has any obligations to the other in the gaps or intervals between engagements. There is no reason in logic or justice why the lack of worker status in the gaps should have any bearing on the status when working. There may be no overarching or umbrella contract, and therefore no employment status in the gaps, but that does not preclude such a status during the period of work."
I agree, subject only to the qualification that, where an individual only works intermittently or on a casual basis for another person, that may, depending on the facts, tend to indicate a degree of independence, or lack of subordination, in the relationship while at work which is incompatible with worker status: see Windle v Secretary of State for Justice [2016] EWCA Civ 459; [2016] ICR 721, para 23.
……
93. In all these respects, the findings of the employment tribunal justified its conclusion that, although they are free to choose when and where they worked, at times when they are working drivers work for and under contracts with Uber (and, specifically, Uber London)…..""
"124. I think it clear - as did all the members of the Court of Appeal, including the dissenting judge, Underhill LJ, if he was wrong on the main issue - that a driver enters into, and is working under, a contract with Uber London whereby the driver undertakes to perform services for Uber London, if not before, then at the latest when he accepts a trip. If the driver afterwards cancels the trip, that signifies only that the obligation undertaken to pick up the passenger and carry the passenger to his or her destination is then terminated. It does not mean that no obligation was ever undertaken. The more difficult question is whether the employment tribunal was entitled to find - as by implication it did - that a worker's contract came into existence at an earlier stage when a claimant driver logged onto the Uber app."
125. Uber argues that it is clear from the tribunal's own findings that drivers when logged onto the Uber app are under no obligation to accept trips. They are free to ignore or decline trip requests as often as they like, subject only to the consequence that, if they repeatedly decline requests, they will be automatically logged off the Uber app and required to wait for ten minutes before they can log back on again. Furthermore, when logged onto the Uber app, drivers are at liberty to accept other work, including driving work offered through another digital platform (see para 16 above). Counsel for Uber submitted that, on these facts, a finding that a driver who switches on the Uber app undertakes a contractual obligation to work for Uber London is not rationally sustainable. Nor can the fact that the driver is ready and willing to accept trips logically alter the position so as to give rise to such an obligation.
126. The fact, however, that an individual has the right to turn down work is not fatal to a finding that the individual is an employee or a worker and, by the same token, does not preclude a finding that the individual is employed under a worker's contract. What is necessary for such a finding is that there should be what has been described as "an irreducible minimum of obligation": see Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612, 623 (Stephenson LJ) , approved by the House of Lords in Carmichael v National Power plc [1999] 1 WLR 2042, 2047 . In other words, the existence and exercise of a right to refuse work is not critical, provided there is at least an obligation to do some amount of work.
127. In the present case Uber London in the Welcome Packet of material issued to new drivers referred to logging onto the Uber app as "going on duty" and instructed drivers that: "Going on duty means you are willing and able to accept trip requests" (see para 17 above). Logging onto the Uber app was thus presented by Uber London itself to drivers as undertaking an obligation to accept work if offered. The employment tribunal also found that the third in the graduated series of messages sent to a driver whose acceptance rate of trip requests fell below a prescribed level included a statement that "being online with the Uber app is an indication that you are available to take trips, in accordance with your Services Agreement." The reference in this message to the Services Agreement must have been to clause 2.6.2, which stated:
"Customer acknowledges and agrees that repeated failure by a Driver to accommodate User requests for Transportation Services while such Driver is logged in to the Driver App creates a negative experience for Users of Uber's mobile application. Accordingly, Customer agrees and shall ensure that if a Driver does not wish to provide Transportation Services for a period of time, such Driver will log off of the Driver App."
128. Counsel for the third respondent suggested that this clause is inconsistent with clause 2.4 of the Services Agreement, which provided that:
"Customer and its Drivers retain the option, via the Driver App, to decline or ignore a User's request for Transportation Services via the Uber Services, or to cancel an accepted request …subject to Uber's then-current cancellation policies."
I do not agree that these clauses are inconsistent. The position both as specified in the Services Agreement and in practice was that, on the one hand, a driver while logged onto the Uber app was free to decline or ignore any individual trip request (and might well, for example, choose to do so if the request came from a passenger with a low rating). But, on the other hand, the driver was required to be generally willing and available to take trips, and a repeated failure by a driver to accept trip requests was treated as a breach of that requirement.
129. Whilst the irreducible minimum of obligation on drivers to accept work was not precisely defined in the Services Agreement, the employment tribunal was entitled to conclude that it was in practice delineated by Uber's criteria for logging drivers off the Uber app if they failed to maintain a prescribed rate of acceptances. Uber seeks to characterise this system as merely a way of seeking to ensure that drivers do not remain logged onto the app, perhaps through inadvertence whilst away from their vehicle, at times when they are not in fact available to work. However, if that were the only purpose of automatically logging off a driver, it is hard to see why the driver should then be shut out from logging back onto the Uber app for a ten-minute period. It was open to the tribunal on the evidence, including Uber's internal documents, to find that this exclusion from access to the app was designed to operate coercively and that it was reasonably perceived by drivers, and was intended by Uber to be perceived, as a penalty for failing to comply with an obligation to accept a minimum amount of work.
130. It follows that the employment tribunal was, in my view, entitled to conclude that, by logging onto the Uber app in London, a claimant driver came within the definition of a "worker" by entering into a contract with Uber London whereby he undertook to perform driving services for Uber London."
"118. McMeechan, Clark , Carmichael and Prater, which bind this Court, are all cases in which this Court considered, in one way or another, the relationship between mutuality of obligation in an overarching contract and in a single engagement. They establish at least three propositions."
i. The question whether a single engagement gives rise to a contract of employment is not resolved by a decision that the overarching contract does not give rise to a contract of employment.
ii. In particular, the fact that there is no obligation under the overarching contract to offer, or to do, work (if offered) (or that there are clauses expressly negativing such obligations) does not decide that the single engagement cannot be a contract of employment. The nature of each contract is a distinct question.
iii. A single engagement can give rise to a contract of employment if work which has in fact been offered is in fact done for payment."
THE SECOND ISSUE – THE RELEVANCE OFA CONTRACT
CONCLUSION
Lady Justice Elisabeth Laing
Lord Justice Moylan