Mr R. Somerville v Medical Practitioners Tribunal Service and 1 other — 2020

This was a reserved judgment on preliminary issues only, delivered by Employment Judge Massarella sitting alone at the East London Hearing Centre. The Claimant, a barrister, sat as a Tribunal Member for the Medical Practitioners Tribunal Service (MPTS) and as a Panel Chair for the Nursing and Midwifery Council (NMC). He brought claims of unpaid statutory holiday pay against both Respondents under the Working Time Regulations 1998 and as unauthorised deductions from wages under s.13(1) ERA, and a claim of direct age discrimination under the Equality Act 2010 against the MPTS only. The Respondents contended that he was an independent contractor rather than an employee or worker.

In relation to the MPTS, the Tribunal held that both the age discrimination claim and the unauthorised deduction from wages claim were presented out of time. For the discrimination claim the Tribunal concluded it was not just and equitable to extend time; for the wages claim it concluded that it had been reasonably practicable to present in time. Both claims against the MPTS were accordingly dismissed for want of jurisdiction without the merits being considered.

In relation to the NMC, the Tribunal addressed only the preliminary status question. It concluded that the Claimant was not an employee of the NMC within s.230(1) ERA or Reg 2(1)(a) WTR, principally because of insufficient mutuality of obligation, but that he was a worker within s.230(3)(b) ERA and Reg 2(1)(b) WTR. The Tribunal considered that the structural guarantees of quasi-judicial independence were not inconsistent with worker status, and that the cumulative factors of recruitment, integration, subordination in the conduct/performance procedure and absence of negotiation in respect of pay meant the NMC was not the Claimant's client or customer. The substantive WTR/holiday pay claim against the NMC was not determined and was directed to a further case management hearing.