Supreme Court will not hear appeal on professional tribunal members’ pay

Somerville: Thousands may benefit from ruling

The Supreme Court has refused permission to appeal a ruling that a barrister who sat as a tribunal chair for the Nursing and Midwifery Council (NMC) was a ‘worker’ and entitled to sickness and holiday pay.

The Court of Appeal ruling could cost regulators millions of pounds in claims across professional tribunals, including the Solicitors Disciplinary Tribunal and Bar Tribunals & Adjudication Service.

In 2020, an employment tribunal held that he was a worker under the Employment Rights Act 1996, despite being told that he was being appointed as an independent contractor.

While Mr Somerville had a wide-ranging “portfolio of work”, he was “semi-detached rather than detached”. The Employment Appeal Tribunal upheld the decision last year and then the Court of Appeal earlier this.

The employment tribunal found that there were a “series of individual contracts between the parties” each time Mr Somerville agreed to sit at a hearing, as well as an “overarching contract between them” in relation to his services as a panel chair.

Further, he was not an employee under a contract of service and there was no “irreducible minimum of obligation”, since the barrister was not obliged to agree to a minimum number of sitting dates and could withdraw from dates he had accepted.

Lord Justice Lewis, giving the ruling of the Court of Appeal, said these 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.

“There is no need, and no purpose served, in seeking to introduce the concept of an irreducible minimum of obligation in the way defined by the respondent.”

A Supreme Court panel of Lords Briggs, Leggatt and Stephens decided that the application to appeal did not raise an arguable point of law.

Mr Somerville said the decision meant that “hundreds, maybe thousands, of other tribunal members and chairs and similar are entitled to holiday pay and other worker protection rights.

“Even more widely, the Court of Appeal also clarified that workers to not need to have made a minimum time commitment outside the individual assignments that they may work on in respect of their worker status claims.”

The case will now move to remedy.

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