So-called portfolio careers, in which professionals in high demand take on numerous roles and work when and if they want to, are becoming ever more commonplace – but can such arrangements be consistent with ‘worker’ status? The Employment Appeal Tribunal (EAT) considered that issue in a guideline case.
The case concerned a barrister who served as a panel member chair of the Fitness to Practise Committee of the Nursing and Midwifery Council (NMC). As an expert in disciplinary matters, he also worked as an ombudsman and for other bodies as an independent investigator, mediator and arbitrator.
He launched proceedings against the NMC with a view to establishing an entitlement to holiday pay. Following a preliminary hearing, an Employment Tribunal (ET) ruled that he was a worker within the meaning of the Employment Rights Act 1996 and the Working Time Regulations 1998.
The ET found that the NMC entered into an individual contract with him each time it agreed to pay him a fee for chairing a committee hearing. There was also an overarching contract between them in relation to the provision of his services as chair. He was obliged to provide those services personally and was not entitled to substitute someone else to chair meetings.
Challenging that outcome, the NMC pointed out that he was under no contractual obligation to offer or accept a minimum number of sitting dates and that he was free to withdraw from dates that he had accepted. There was no mutuality of obligation between them and the NMC submitted that the absence of any requirement on his part to accept or perform a minimum amount of work was fatal to the proposition that he was a worker.
Dismissing the appeal, however, the EAT found that establishing the existence of an irreducible minimum of obligation is not a prerequisite to attaining worker status. The contractual relationship and the barrister’s personal provision of his services for a fee were sufficient to confer that status upon him. Arguments that the reality of the relationship was that the barrister was carrying on a business, and that the NMC was his client, also fell on fallow ground.