Nursing and Midwifery Council v Somerville

This appeal concerns the question of whether an individual appointed as a panel member and chair of a Fitness to Practise Committee of a professional regulatory body, and who undertook hearings, was a worker within the meaning of regulation 2(1) of the Working Time Regulations 1998 (“the Regulations”). I will refer to Mr Somerville as the claimant and the regulatory body, the Nursing and Midwifery Council (“the Council”) as the respondent as they were referred to in the tribunals below.

In brief, the claimant’s appointment as a panel member and chair was subject to written terms of agreement referred to as an overarching contract. The claimant also agreed to sit on panel hearings on particular days although he was free to refuse to accept any particular hearing date, or to cancel a hearing that he had agreed to attend by notifying the Council that he was no longer available for that hearing.

By a claim form presented on 20 July 2018, the claimant claimed unpaid holiday pay on the ground that he was a worker entitled to paid annual leave under the Regulations. A preliminary hearing was ordered to determine the question of whether the claimant was a worker. This appeal is concerned solely with that preliminary issue. We are not asked to consider whether, or to what extent, the claimant is entitled to paid annual leave if he is a worker.

Following the preliminary hearing, an employment tribunal (Employment Judge Massarella) held that the claimant was a worker within the meaning of limb (b) of the definition of worker in regulation 2(1) of the Regulations as there was an overarching contract between the claimant and the Council, as well as individual contracts when hearings were assigned to the claimant, under which he agreed to provide his services personally.

The Council appeals that finding on the basis that there must be what it describes as an irreducible minimum of obligation, that is an obligation on the claimant to perform a minimum amount of work, in order for a contract to be a worker’s contract within limb (b) of regulation 2(1) of the Regulations. It submits that the fact that the claimant was not obliged to offer to do any work or perform any services was inconsistent with the existence of the obligations necessary for the claimant to be a worker under the Regulations.

The claimant submits that he had attended hearings and had been paid for doing so. That work was performed under a contract whereby he undertook to do work or perform services personally and so he fell within the definition of a worker in regulation 2(1) of the Regulations when attending those hearings. Further, whilst the claimant accepted that he was not obliged to accept any work under the overarching contract, when he did agree to attend a hearing, obligations related to that hearing were contained in both the individual agreements and the overarching contract. That was sufficient to mean that the claimant was a worker within the meaning of limb (b) of the definition of worker in regulation 2(1) of the Regulations even in periods between individual assignments.

Regulation 2(1) of the Regulations defines a worker in the following way:

Similar definitions of a worker are included in other statutory provisions such as section 230(3) of the Employment Rights Act 1996 (“the 1996 Act”), section 54 of the National Minimum Wages Act 1998 and regulation 1(2) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

Regulation 13 of the Regulations confers a right to four weeks’ annual leave. Regulation 16 provides for the worker to be paid in respect of periods of annual leave at the rate of a week’s pay in respect of each week of leave. It provides a method for calculating the amount of a week’s pay in circumstances where a worker does not work normal hours. Regulation 14 of the Regulations provides for the payment of compensation on termination of a worker’s employment.

The relevant facts can be taken from the findings of the employment tribunal.

The respondent is the regulator of nurses and midwives in the United Kingdom. Its functions are governed by the Nursing and Midwifery Order 2001. The Council has a statutory duty to maintain standards of conduct and performance for nurses and midwives. An Investigating Committee investigates allegations that a nurse or midwife’s fitness to practise may be impaired by reason of misconduct, lack of competence, a conviction or caution, physical or mental health or lack of the necessary knowledge of English. Where it considers there is a case to answer, an allegation is referred to a Fitness to Practise Committee to consider.

The respondent maintains a pool of appointed persons to sit as panel members of Fitness to Practise Committees. There is a process of appointment overseen by an appointments board to ensure that only suitably qualified individuals are recommended to the Council for appointment as panel member.

The claimant was appointed as a panel member and chair of one of its Practice Committees (now known as the Fitness to Practise Committee) for a four-year term by letter dated 9 May 2012. He was re-appointed for a further four-year term by letter dated 5 May 2016. Each appointment was subject to a panel members services agreement (the 2012 and the 2016 Agreements respectively).

Each of the Agreements was expressed to be made between the Council and the claimant. Each Agreement provided that the parties had agreed that the panel member” “shall provide the Services on the terms of the Agreement”.

Under the heading “Supply of Services” Clause 11 of the 2016 Agreement (and clause 7 of the 2012 Agreement) provided that:

The services to be provided by the panel member were defined in Part A of the 2016 Agreement in the following terms:

Clause 12 of the 2016 Agreement provided that in performing the services, the panel member would operate and have the status of an independent contractor and nothing in the Agreement created a relationship of employer and employee. Clause 13 provided that nothing in the Agreement rendered the panel member an employee, partner or agent of the Council. Clause 14 provided that the panel member was an independent contractor and was responsible for accounting for income tax and national insurance contributions. Materially similar provisions were included in the 2012 Agreement.

Clauses 17 to 21 of the 2016 Agreement imposed obligations on the panel member including obligations to comply with the Council’s Code of Conduct and Service Standards (“the Code of Conduct”) and relevant Council policies. Clause 17.5 provided that the panel member:

There were further obligations on the panel member to provide information about certain matters and to attend meetings at the reasonable request of the Council to review the provisions of services by the panel member.

Clause 22 of the 2016 Agreement required the Council to provide information including communications about relevant guidance and procedure and to provide training. Again similar obligations were imposed on the panel member and Council by the 2012 Agreements.

Fees for hearings undertaken were fixed by the Council and were specified in Part B of the 2012 and 2016 Agreements. Under the 2016 Agreement, for example, the attendance fee for hearings for a panel chair was £340 for a full day or £170 for part of a day. There was a reading day fee of £100 payable for certain work done prior to the hearing.

Annexes to the 2016 Agreement contained the Code of Conduct. That described the obligations on panel members in respect of their conduct. Paragraph 16 of the Code provided that panel members “should ensure” that they were available to provide their services as set out in the 2016 Agreement and should:

The employment tribunal described the practical arrangements for arranging hearings. The Council’s panel support team would ask the claimant to provide his available dates over a six-month period. The Council would then notify him when he would be required and, about a month before a particular hearing, a hearing would be allocated to the claimant. The claimant could (and on occasions did) refuse hearing dates. The claimant could withdraw from a hearing even after it had been allocated to him without any need to provide a reason. The only requirement was that he notify the allocation team. He was not penalised if he withdrew from a hearing in this way. If the Council cancelled a hearing, the claimant would be paid in full up until October 2017 and thereafter he was paid 50% of the fee if less than 14 days’ notice of the cancellation was given. If a hearing went short, or was cancelled once it had begun, the Council paid the fee in full.

The number of days on which the claimant sat on Fitness to Practise Panels varied over the years. It was at its highest (129 days) in 2013. Between 2014 and 2017, it varied between 61 and 98 days a year. In 2018, it reduced substantially to 17 days and, in 2019, he had sat for only 7 days by the beginning of November.

The material conclusions of the employment tribunal were as follows. First, it found that there was an overreaching contract governing the claimant’s period of appointment and a series of individual contracts.

In relation to the overarching contract, paragraph 190 of the employment tribunal’s reasons records that:

The obligations referred to were those imposed on the claimant by clause 17, and on the Council by clause 22, of the 2016 Agreement summarised at paragraphs 17 to 20 above. Essentially, they reflect the duties on the claimant to comply with relevant procedures, to provide information and to maintain confidentiality. The obligations imposed on the Council related to the provision of communications on guidance and procedure and the provision of training. None of the obligations referred to by the employment tribunal imposed any obligation on the Council to offer work or on the claimant to perform work or provide services.

In relation to the individual contracts that the employment tribunal found existed, it said at paragraph 191 of its reasons that:

Secondly, the employment tribunal found that neither the overarching contract nor the individual contracts amounted to contracts of employment and so did not fall within limb (a) of the definition of worker in regulation 2(1) of the Regulations. In relation to the overarching contract, the employment tribunal said at paragraph 198 of its reasons that its terms:

It noted that the claimant decided how many dates to offer to the Council and, if offered assignments on particular dates, he was free to refuse them. He was under no contractual obligation to offer dates. He was under no obligation to honour any dates once he accepted as he was free to withdraw. The employment tribunal accordingly concluded that the overarching contract, whilst a contract, was not a contract of employment. There is no appeal against that finding.

In relation to the individual assignments, the employment tribunal concluded at paragraph 210 of its reasons, that:

The reason why the employment tribunal found that the individual contracts governing assignments were contracts, but not contracts of employment, was because of the ability of the Claimant to withdraw. That appears from paragraph 213 of its reasons where it said that:

Accordingly, the employment tribunal concluded that the claimant was not an employee, that is, he was not working under a contract of employment. There is no appeal against that finding. This reasoning is not, however, consistent with the subsequent decision of this Court in Professional Game Match Officials Ltd v Revenue and Customs Commissioners [2021] STC 1956 (“the PGMOL case” ). In that case, the Court was dealing with referees at football matches. There, professional referees could accept an appointment to referee a particular match but could withdraw from the appointment subsequently. Elisabeth Laing LJ, with whom the other members of the Court agreed, held at paragraph 122 that:

The next question for the employment tribunal was whether the claimant, even if not an employee, was still a worker within the meaning of limb (b) of the definition of worker in regulation 2(1) of the Regulations. In that regard, the employment tribunal said this:

The employment tribunal set out its conclusion in relation to the first two elements of the test at paragraph 219 where it said that:

The employment tribunal then considered the third element, namely whether the Council was a client or a customer of a profession or business carried on by the claimant. It concluded that the Council was not. Furthermore at paragraphs 242 to 244 of its reasons the employment tribunal said this:

The Council appealed to the Employment Appeal Tribunal (“EAT”) against the finding that the claimant was a worker. For present purposes, it is necessary to note only grounds 1 and 2. The first was that the claimant could not be a worker within regulation 2(1) of the Regulations because the mutuality of obligation required for worker status was not present as the claimant was not under a contractual obligation to do or perform any work and the Council was not under any obligation to provide work. The second ground was that the employment tribunal erred in taking into account the fact that there was a contract between the claimant and the Council as that was irrelevant to the determination of whether the claimant was contractually obliged to perform work or services.

The EAT dismissed the appeal. It held that an irreducible minimum of obligation - in the sense of an obligation on the person to accept and perform some minimum amount of work for the other party to the contract who was obliged to offer or pay for the work - was not a prerequisite for establishing worker status as defined by limb (b) of the definition of worker in regulation 2(1) of the Regulations. In the present case, the employment tribunal had found that there was a contract between the parties at all material times and it related to the provision of the claimant’s services as a panel chair. That was sufficient to meet the requirements of the regulation.

The EAT granted permission to appeal on the question of whether mutuality of obligations (in the sense of there being an obligation for the putative worker to accept and perform some minimum amount of work for the putative employer) is a prerequisite for satisfying the definition of worker status in section 230(3)(b) in the 1996 Act and regulation 2(1) of the Regulations.

That permission is reflected in the two grounds of appeal set out in the Council’s notice of appeal. They are as follows:

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

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.

Ms Darwin, together with Ms Swords-Kieley, for the respondent submits that a contract cannot fall within the scope of limb (b) of regulation 2(1) of the Regulations unless it includes an irreducible minimum of obligations on the parties. That meant, submitted Ms Darwin, that each contract had to include an obligation on the part of the worker to perform some minimum amount of work. That, she submitted, appears from paragraph 126 of the decision of the Supreme Court in Uber BV and others Aslam [2020] ICR 657 and is consistent with other case law such as Nethermere (St Neots) Ltd. v Gardiner [1984] ICR 612. Ms Darwin further submitted that the employment tribunal had not found that there was any such obligation on the claimant in the present case.

Further, Ms Darwin submitted that there were other features of the relationship that compelled the conclusion that there was no irreducible minimum of obligation in this case. They included, principally, the following. The individual assignments had to be read together with the overarching contracts contained in the 2012 Agreement and the 2016 Agreement and those did not oblige the Council to offer, or the claimant to perform, any work. The claimant was entitled to refuse any individual assignment or to cancel it once accepted. Further, the reference to a person who “undertakes” to do work or perform services in regulation 2 of the Regulations carried with it the sense that there was an obligation on the person to do work or perform services personally. Further, in her skeleton argument at paragraph 23, Ms Darwin submitted that the irreducible minimum obligation was about an obligation on the putative employer to offer work in future and an obligation on the worker to undertake that future work when it was offered. It was not about whether an individual was legally obliged to continue with a particular assignment until it was completed. Finally, Ms Darwin submitted that her interpretation was consistent with the policy underlying the Regulations which was to protect individuals who were in a dependent position and, in circumstances where there was no irreducible obligation, a person would not be in such a position of dependency.

Mr Jupp, together with Mr Jackson, for the claimant, submitted that mutuality of obligation was necessary to establish any bilateral contract. The concept of an irreducible minimum obligation was used as an aid to establish whether an individual has a contract of service extending beyond a single assignment. That obligation was not relevant to assessing whether the requirements of limb (b) of the definition of worker in regulation 2(1) of the Regulations were satisfied. In particular, where, as here, the claimant had in fact agreed to perform services by attending a hearing, and had done so and been paid, he was a worker within the meaning of the Regulations.

The starting point must be the definition of worker within regulation 2 of the Regulations. A worker is defined to mean an individual who has entered into, or works, or has worked, under one of two types of contract. The first is a contract of employment. The second is:

That definition has within it a number of elements. First, there must be a contract. That is, there must be legally enforceable obligations owed by the parties. As Elias LJ expressed it in Quashie v Stringfellows Restaurants Ltd. [2013] IRLR 99 at paragraph 10: “Every bilateral contract requires mutual obligations; they constitute the consideration from each party necessary to create the contract”. Next, the contract must include a certain type of obligation, so far as the individual is concerned, if he is to be able to claim that he falls within limb (b) of the definition of “worker”. The obligation must be one whereby the individual undertakes to do or perform any work or services and to do so “personally”. Finally, the other party must not be a client or customer of any profession or business undertaking carried on by the individual. The various elements of the definition can be differently described, and enumerated. They are summarised in Uber at paragraph 41 in the following way:

In the present case, the employment tribunal was dealing with two different kinds of contracts. The first was the contracts contained in the 2012 Agreement and the 2016 Agreement which governed the claimant’s appointment as a panel member and chair. These agreements did include mutually enforceable obligations and so did give rise to a contract. They did not, however, include the type of obligations which were necessary to bring them within the scope of a worker’s contract. That appears from the reasoning of the employment tribunal. It found that the Agreements imposed obligations on the Council to provide communications on guidance and procedure and to provide training. The Agreements imposed obligations on the claimant to comply with relevant guidance and to provide information when required and to deal with information confidentially. See paragraphs 98, 99 and 190 of the tribunal’s reasons. It is clear that those Agreements did not amount to a contract of employment because they did not impose any obligation on the Council to offer or pay for work or any obligation on the claimant to provide any services (see paragraphs 196 to 209 of the reasons).

By parity of reasoning, those Agreements did not of themselves include obligations of the kind necessary to make them worker’s contracts within limb (b) of the definition of worker in regulation 2 of the Regulations. More specifically, they did not include an obligation on the claimant to do or perform personally any work or services. The obligations ensured that the claimant would be provided with the training and information necessary to discharge the duties of a panel chair. They imposed duties on the claimant to provide information and assistance if required. They expressly contemplated that the claimant might agree to provide services when requested (see clauses 11.2.4 and 17.5 set out above) and, if so, defined those services and set out obligations applicable to the provision of those services. But the 2012 Agreement and 2016 Agreement stopped short of being a contract under which the claimant undertook “to do or perform personally any services”. Put differently, the Agreements contemplated that the claimant might agree to provide services and they imposed obligations to ensure that he would be adequately trained and informed to do so if he agreed to provide them, but they stopped short of imposing any obligation on the Council to offer any hearing or, more significantly, any obligation on the claimant to do any work or perform any services. For that reason, although the Agreements were contracts, they did not include obligations of the sort that would bring them within the definition of a worker’s contract in the Regulations.

The employment tribunal also found that the claimant and the Council entered into a series of individual contracts. Each time the Council offered a hearing date, and the claimant accepted it, he agreed to attend that hearing and the Council agreed to pay him a fee. By those individual agreements, and the obligations contained in the 2012 and 2016 Agreements setting out how the claimant was to carry out the task of conducting a hearing, the claimant “agreed to provide his services personally” (see paragraph 219, and paragraphs 189 and 191, of the employment tribunal’s reasons). The employment tribunal went on to find that the Council was not the client or customer of a profession or business carried on by the claimant. Those 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.

That conclusion is consistent with the decision of the Supreme Court in Uber. The question in that case was whether mini cab drivers whose work was arranged though Uber’s smartphone application worked for Uber under workers’ contracts or whether they were independent contractors providing services under contracts with passengers concluded through Uber as their agent. It is clear from the judgment that the drivers were not claiming to be providing services under any overarching contract between them and Uber. That would be inconsistent with the fact that the drivers were entitled to decide when, how and how much to work. They were, however, providing services under individual contracts when they were working. That appears from paragraphs 90 to 91 and 93 of the judgment of Lord Leggatt JSC, with whom the other members of the Court agreed, which appear under the heading “Status of the Claimants in this Case”. The material parts provide that:

Lord Leggatt subsequently turned, under the heading “Working Time”, to what he described as the “secondary question” of “during what periods of time were the claimants working?” (see paragraph 121). In that regard, Lord Leggatt considered that, at the latest, the drivers were working under a contract when they accepted a trip (notwithstanding the fact that they could cancel it). Lord Leggatt went further and concluded that the drivers were working when they turned on their app, and before accepting any trip, because, on the particular facts, whilst drivers were not obliged to accept any individual trip, they were required to be generally willing and available to take trips and a repeated failure to accept trips would lead to penalties in that the driver would be logged off the Uber app. That appears from the following paragraphs of Lord Leggatt’s judgment:

In other words, the parts of the judgment upon which the Council rely are, on a proper analysis, concerned with the time at which a contract to work or personally to perform services arose. There was a contract to perform services personally when the driver was in fact working (as appears from paragraph 91 of the judgment). As a minimum, such a contract existed when a driver accepted a trip – and the fact that the driver could cancel the trip simply meant that the contract came to an end and did not mean that there had never been an obligation to provide services (see paragraph 124). But, on the facts of this case, the contractual obligation to provide services arose at an even earlier time. Even though a driver could refuse to accept particular trips, he was required to be willing and available to take trips once he logged onto the app, and he would be penalised if he did not. That amounted to an obligation to do some work which meant that, from the time a driver logged on, he had entered into a contract under which he undertook to perform services personally.

These paragraphs in the judgment in Uber, therefore, are directed towards identifying when the obligation to perform work arose. They are not intended to suggest that, even where a person is working or providing services personally under a contract, there must be some superadded, distinct obligation on a putative employer to provide work or an individual to accept work before that can fall within the scope of limb (b) of regulation 2 of the Regulations.

Similarly, other cases relied upon by the respondent, such as Nethermere, and Carmichael and another v National Power Plc [1999] 1 WLR 2042 were concerned with whether overarching contracts were contracts of employment so that the individuals were employed in periods when they were not, in fact, working. In that regard, it was necessary to determine whether the contracts included obligations, referred to on occasions as the irreducible minimum of obligations, to provide and to accept some work. They were not dealing with the individual contracts under which work was carried out and do not impose any requirement that even where an individual is working (or has worked) under a contract of employment, that that individual contract requires there to be some distinct, superadded obligation to accept the work. See the analysis in the PGMOL case at paragraph 48 and following in relation to contracts of employment. The same reasoning applies in relation to contracts falling within limb (b) of the definition of worker in regulation 2 of the Regulations.

Nor do any of the other factors, relied upon by Ms Darwin, point to any other conclusion. It is correct that the individual contracts for individual assignments had to be read with the 2012 and 2016 Agreements, not least because those agreements contemplated that the claimant might agree to chair particular hearings and, if so, contained obligations that applied to the carrying out of a particular hearing. However, the fact that an overarching contract does not impose an obligation to work does not preclude a finding that the individual is a worker when he is in fact working: see paragraph 91 of the decision in Uber and the cases referred to in that paragraph such as Windle and another v Secretary of State for Justice [2017] 3 All E.R. 568, especially at paragraph 23. The position is clearly established in relation to contracts of employment by the decision in the PGMOL case and, in my judgment, similar principles apply when considering the relationship between a general or overarching contract and individual contracts to do work or perform services personally. Elisabeth Laing LJ, with whom the other members of the Court agreed, held that:

Similarly, the fact that the claimant could withdraw from the agreement to attend a hearing even after he had accepted it does not alter matters. The claimant had entered into a contract which existed until terminated (see paragraph 124 of the judgment in Uber). Furthermore, if it was not terminated and the claimant did chair the hearing, the claimant will, in the language of the Regulations, have worked under a contract personally to perform services. Nor does the reference to “undertakes” indicate that there must be some distinct, superadded obligation to provide services independent from the provision of the services on a particular occasion. “Undertakes to do or perform” in this context means no more than “promises to do or perform”. Finally, when deciding whether a specific agreement to provide services on one particular occasion amounts to a worker’s contract, the fact that the parties are not obliged to offer, or accept, any future work is irrelevant: see McMeechan v Secretary of State for Employment [1996] ICR 549 at p. 565C-E.

I do not consider that statements that the policy underlying the Regulations is to protect individuals who are in a dependent position assist in interpreting and applying the provisions of the Regulations in the present case. The purpose underlying the Regulations is to ensure that the relevant rights are available to employees, and also to those who are self-employed and who do work or provide services personally (otherwise than for clients in a business carried on by the self-employed person on his own account): see per Baroness Hale in Bates van Winkelhof v Clyde & Co LLP [2014] 1 WLR 2047 at paragraph 31. If, as here, the claimant falls within the group of self-employed persons providing services personally (but not as part of a profession or business undertaking carried on by him of which the other party is a client), there appears to be no policy reason to justify giving the words in the Regulations a narrower meaning, even if that were possible.

For completeness, I deal with one other issue. The claimant’s position was that, in the present case, it was not necessary to determine whether the 2012 and 2016 Agreements were worker’s contracts. It was sufficient, for the purposes of the claim for unpaid holiday leave, if the individual contracts were worker’s contracts. Mr Jupp submitted, however, that the 2012 and 2016 Agreements were worker’s contracts because they included obligations which related to, or concerned, the provision of services when the claimant did in fact conduct hearings.

I doubt that that submission is correct. The 2012 and 2016 Agreements were contracts (as they included mutually enforceable obligations) but they were not worker’s contracts. They did not themselves impose any obligation on the claimant to do work or perform services personally. If the claimant did agree to provide services, then the overarching contracts contained a definition of the services to be provided under the individual contract and included obligations applicable to the way in which those services were to be provided. As such, the overarching agreements assisted in determining that the individual contracts were contracts under which the claimant undertook to provide services personally. That is what the employment tribunal meant in paragraph 219 of its reasons. I would not, however, be minded to regard the claimant as being a worker when there was no individual contract in place and the only set of obligations governing the relationship between the claimant and the Council were the 2012 and 2016 Agreements as those Agreements did not include any obligation on the claimant to do work or provide services personally.

Ms Darwin submits that, at paragraph 242 of its reasons, the employment tribunal suggested that the existence of legal obligations on each side, or the existence of a contract, was relevant to the question of whether there was an irreducible minimum of obligations. That, she submits was an error on the part of the tribunal.

That submission can be dealt with shortly. Decisions of employment tribunals must be read fairly and as a whole. It is clear from the decision that the employment tribunal understood that there had to be a contract in existence and also that it had to include certain types of obligations in order to be a contract of employment or a contract falling within limb (b) of the definition of worker. That is why it structured its reasons as it did, by asking first if there was a contract in existence, then, secondly whether the overarching and individual contracts were contracts of employment and then, if not, whether they were contracts to do or perform services personally. That is also reflected in paragraph 218 of its decision where it set out the three requirements that must be met for a contract to fall within limb (b) of the definition of worker’s contracts. Finally, if there were any doubt about this (which there is not), it is clear from paragraphs 242 and 243 of the reasons read together that the employment tribunal found that there was a contract in existence and that was a contract whereby the claimant undertook personally to perform work or services. There is no substance in this second ground of appeal.

For those reasons, the employment tribunal was entitled to find that the claimant was a worker within the meaning of limb (b) of the definition of a worker in regulation 2(1) of the Regulations. He was a person who entered into, and indeed had worked under, a series of individual contracts under which he had undertaken to (and did) perform services (chairing Fitness to Practise Committees) personally. The Council was not a client or customer of a business or professional undertaking carried on by the claimant. I would dismiss this appeal.

I agree.

I also agree.