Statutory employment rights: do they apply where no work obligations exist

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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.  

Key takeaway point

Mutuality of obligations is essential to establish employee status which is necessary for rights such as protection from unfair dismissal, redundancy pay, maternity leave etc. However, workers will be entitled to many important rights including protection from discrimination and statutory holiday pay.  These rights will need to be taken into consideration wherever there is an overarching contract in place which would appear to be particularly relevant where someone is contracted on a zero hours basis.

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