Mr R Somerville v Medical Practitioners Tribunal Service and Nursing and Midwifery Council: 2413617/2018

EMPLOYMENT TRIBUNALS

Case No 2413617/2018

Between

Mr R. SomervilleClaimant

(1) Medical Practitioners Tribunal Service (2) Nursing and Midwifery CouncilRespondent

Before

Employment Judge Massarella

Date 9 April 2024

JUDGMENT

[1]The claim against the First Respondent of age discrimination under the Equality Act 2010 is dismissed, because the Tribunal lacks jurisdiction to hear it: it was presented out of time, and it is not just and equitable to extend time.

[2]The claim against the First Respondent of unauthorised deduction from wages under the Employment Right Act 1996 is dismissed, because the Tribunal lacks jurisdiction to hear it: it was presented out of time, when it was reasonably practicable for it to be presented in time.

[3]The Claimant was not an employee of the Second Respondent for the purposes of s.230(1) Employment Rights Act 1996, and Reg 2(1)(a) of the Working Time Regulations 1998.

[4]The Claimant was a worker of the Second Respondent for the purposes of s.230(3)(b) Employment Rights Act 1996, and Reg 2(1)(b) of the Working Time Regulations 1998.

REASONS

Findings of fact

[1]By a claim form presented on 20 July 2018, the Claimant claimed unpaid statutory holiday pay against both Respondents, and age discrimination against the First Respondent (‘the MPTS’) only.

[2]The ACAS early conciliation process took place between 30 June and 11 July 2018 in respect of the MPTS and between 17 and 20 July 2018 in respect of the Second Respondent (‘the NMC’).

[3]The Respondents are professional regulatory bodies: the MPTS for doctors, the NMC for nurses and midwives. The Claimant was a Tribunal Member with the former and is a Panel Chair with the latter. The relationship (to use a neutral term) with the MPTS ended in April 2018; with the NMC it was, at the time of the hearing, continuing.

[4]The Claimant contended that, notwithstanding the terms of the contract between him and both Respondents, which characterise him as an independent contractor, he was either an employee within the meaning of s.230(1) Employment Rights Act 1996 (‘ERA’), alternatively a worker within the meaning of s.230(3)(b) ERA; for the purposes of his age discrimination claim against the MPTS, he contends that he was an employee within the meaning of s.83(2) Equality Act 2010 (‘EqA’).

[5]The MPTS presented its ET3 on 24 August 2018: it raised limitation issues in relation to both of the claims against it, and denied that the Claimant was an employee or a worker. The NMC presented its ET3 on 24 August 2018: it too denied that the Claimant was an employee or a worker. The NMC was content for any limitation issues in respect of the claim against it to be held over for the final hearing, should the claims proceed. Procedural history

[6]The case was originally to be heard in the Manchester region. The Claimant applied for it to be transferred to London; neither Respondent objected, and on 25 October 2018, Regional Employment Judge Parkin ordered that it be transferred to the London East region.

[7]The NMC asked that the two cases be heard separately; the Claimant objected, and they remained joined. The MPTS asked that the matter be listed for an open preliminary hearing to determine the jurisdictional issue.

[8]In London East, a closed preliminary hearing took place on 24 January 2019, listing a further, open preliminary hearing to deal with the issue of employment status in respect of both Respondents, and limitation in respect of the MPTS. Orders were given, including one for disclosure by 9 May 2019. On 25 September 2019, the NMC made an application for specific disclosure. The issues in the case

[9]Regional Employment Judge Taylor directed that the parties send the Tribunal a draft list of issues by 18 January 2019. That was not done. Nor were the issues clarified at the preliminary hearing. At the beginning of the hearing before me, I asked the parties to use the time while I was reading into the case to agree a list of factual and legal issues for the Tribunal, including the preliminary issues before me. The parties made several attempts to do so, and a workable version was eventually achieved by the morning of the third day.

[10]The Claimant alleges that both Respondents failed to pay him in respect of his statutory annual leave entitlement, contrary to Regs 13, 13A and 16(1) Working Time Regulations 1998 (‘WTR’), and had thereby made unauthorised deductions from his wages, contrary to s.13(1) ERA. He confirmed, both orally and in the final agreed list of issues, that he was not advancing his claim under Reg 14 WTR: his case was not that he was not permitted to take annual leave, rather that a payment should have been made in respect of annual leave each time he was paid; his was solely a claim under Reg 16 WTR.

[11]The Claimant made reference to the Working Time Directive 2003/88/EC, but acknowledged in his closing submissions that there is no material difference between the ECJ and domestic definitions of ‘worker’.

[12]Against the MPTS only, the Claimant alleges direct age discrimination in relation to: 12.1. comments received from a Panel Member of the MPTS, following a hearing held on 16-20 February 2015, to the effect that he should be more deferential to more experienced Panel Members; 12.2. the MPTS’s alleged failure to deal with the Claimant’s complaint about this treatment between August and October 2015; 12.3. the MPTS’s failure to appoint him to the position of Tribunal Chair.

The Hearing

[13]I had a separate bundle of documents relating to the cases against each Respondent: the MPTS bundle ran to 1237 pages, the NMC bundle to 651 pages, to which a further 200 or so pages were added after I allowed the NMC’s disclosure application. The volume of documentation produced the parties was disproportionate to the issues in dispute; I was referred to a small fraction of those documents in evidence and submissions. There seems to have been little cooperation between them to produce more focused, and manageable, bundles.

[14]I spent the first day of the hearing reading into the case; the second and third days were sufficient to hear the evidence; a further two days were listed in February to hear submissions and for deliberation; orders were made for the exchange of written submissions and the preparation of a joint bundle of authorities. In the event, two other case were listed before me on those days, leaving no time for deliberation. I took a further day to deliberate at the end of February. There was a then a delay in producing this judgment and reasons, for which I apologise to the parties; it was caused by the competing demands of other cases, with additional complications arising from the circumstances of the Covid-19 pandemic.

[15]For the case against the MPTS I heard evidence from the Claimant; on behalf of the MPTS I heard evidence from Ms Tamarind Ashcroft (Head of Tribunal Development, MPTS), and Ms Kate Goodridge (Head of Resourcing and Associate Services at the General Medical Council (‘GMC’)).

[16]The Claimant gave evidence separately in relation to his case against the NMC; on behalf of the NMC I heard evidence from Ms Clare Padley (General Counsel, NMC), and Mr Paul Johnson (Assistant Director within the NMC Fitness to Practice Directorate).

[17]Although the Claimant is himself a barrister, because he was representing himself at this hearing, he was effectively a litigant in person.

[18]I had extensive written submissions from all three parties: the Claimant’s ran to 128 pages, Ms Darwin’s to 23 pages, and Mr Hare’s to 21 pages. They supplemented their written submissions orally. I was grateful to all three of them for their assistance, and mean no disrespect to them by not summarising their arguments in what is already a long judgment; their written submissions set out their respective positions, and are a matter of record. I will refer to specific points raised by the parties in context.

[19]Although I asked the parties to cooperate in producing a proportionate bundle of authorities, avoiding repetition and uncontroversial cases, I was provided with a double-sided, lever-arch file of 45 authorities, running to 759 pages. I will not list them here.

[20]The Claimant also told me that he had hand-delivered to the Tribunal a text book on employment status, which he intended that I should read. It had not reached me; in any event, I explained that it would not be appropriate for me to do so, nor would it be necessary, given the volume of other material which had been provided.

[21]Submissions were made by both the Claimant and Ms Darwin, inviting me to have regard to the possible wider implications of my decision on employment status: for the Claimant’s fellow Panel Members, and for the NMC as an organisation. Although the outcome of this case might have implications for others, this is not a group action, and I reminded them that my focus must be solely on the Claimant’s status, and based on the evidence before me. The NMC’s application for specific disclosure

[22]By an application sent to the Tribunal on 4 October 2019, the NMC sought specific disclosure from the Claimant. That application was resisted by the Claimant in a letter dated 7 October. On 21 October 2019, the application came before EJ Lewis who ordered as follows: ‘The application for specific disclosure made on 4 October 2019 is noted and the subsequent correspondence of 7 and 9 October 2019 is noted. The remaining aspects of the disclosure application will be considered at the start of the hearing on 13 November 2019. The Employment Judge notes that the Claimant is asserting that he is/was an employee or a worker. If the Claimant is pursuing the claim on that footing, then at least some of the documents requested in the Respondent’s letter dated 19 October 2019 appear to be relevant to the issues. Whilst the parties are only required to disclose documents that exist and are not required to create documents, the Claimant will need to provide evidence in respect of his professional activities, whether for the Respondents or others, or on his own account, during the relevant period.

[23]The Claimant submitted that EJ Lewis had refused the NMC’s application, which was clearly not the case; the matter was left for determination at today’s hearing.

[24]The NMC narrowed its application to four categories of documents relevant to the question of employment status, and a category relating to holidays taken, to which I will return (numbers refer to the points in the original application). 24.1. Point 2: the Claimant’s income tax returns relating to the period from 16 April 2012 until today. 24.2. Point 3: any information that the Claimant had provided to his accountants relevant to his claim that he was employed by and/or worked for the NMC during this period. 24.3. Point 4: any information that the Claimant provided to HMRC relevant to his claim that he was employed by and/or worked for the NMC during this period. 24.4. Point 12: any other information relating to his claim that he was not an independent contractor, and/or did not have clients or customers between 16 April 2012 until today.

[25]The request in relation to information provided by the Claimant to his accountant was further narrowed to the period 2009 onwards. The Claimant was concerned that the type of documents required by Point 12 was unclear; Ms Darwin (Counsel for the NMC) provided examples.

[26]There was an additional category relating to details of holidays taken. I agreed that this was information which may be required, if the Claimant succeeds on the preliminary issue, when it could be dealt with by way an order for further information or for disclosure; no order was necessary at this stage.

[27]I accepted Ms Darwin’s submission that the documents relating to the Claimant’s tax status were relevant to, though not determinative of, the employment status issue, and ought to have been disclosed. Equally, statements made by the Claimant about his employment status within the categories of documents identified were also potentially probative: how a person markets or presents himself to the world at large may be a relevant factor.

[28]It was not sufficient for a party to offer to agree facts, as the Claimant did, in relation to issues of this sort. The other party cannot agree facts, without having the opportunity to verify matters independently, by reference to the relevant documents.

[29]I considered that the four categories of documents were relevant to the status issue, and necessary for its fair disposal. The ambit of the request, as narrowed, was reasonable and not onerous.

[30]I ordered that if, as a matter of fact, there were no documents within any of the categories, the Claimant should state this, when providing those documents which clearly did exist, such as his tax returns. THE CASE AGAINST THE MPTS

[31]I will deal first with the Claimant’s case against the MPTS. Although I heard evidence and submissions on the issue of employment status in relation to the MPTS, a limitation issue arose in respect of both the Claimant’s claims which, if decided in its favour, would determine the Claimant’s case in its entirety, and I will consider it first. Time limits: the law Age discrimination

[32]S.123(1)(a) EqA provides as follows: (1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment Tribunal thinks just and equitable. […] (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[33]S.123(3)(a) EqA provides that conduct extending over a period is to be treated as done at the end of the period. The leading authority is Hendricks v Commissioner of Police of the Metropolis

[2003] ICR 530

, in which the Court of Appeal held that Tribunals should not take too literal an approach to determining whether there has been conduct extending over a period: the focus should be on the substance of the complaint that the employer was responsible for an ongoing situation or a continuing state of affairs in which an employee was treated in a discriminatory manner.

[34]The Tribunal’s discretion to extend time under s.123(1)(b) EqA is a broad one. In exercising it, the Tribunal should have regard to all the relevant circumstances, which will usually include: the reason for the delay; whether the Claimant was aware of his right to bring a claim and of the time limits; whether he acted promptly when he became aware of his rights; the conduct of the employer; the length of the extension sought; the extent to which the cogency of the evidence has been affected by the delay; and the balance of prejudice (Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] ICR 1194

[35]Awaiting the outcome of an internal grievance procedure before making a complaint is a matter which may be taken into account by the Tribunal, although it is not determinative (Apelogun-Gabriels v Lambeth London Borough Council

[2002] ICR 713

CA at 719).

[36]In the context of discrimination cases, the importance of recalling not only what is done, but the thought processes involved, make it all the more difficult, and more likely that memory fade will have an impact on the cogency of the evidence (Redhead v London Borough of Hounslow

UKEAT/0086/13/LA

per Simler J. at [70]). Unauthorised deduction from wages

[37]S.23 ERA provides (as relevant) that:(1) A worker may present a complaint to an employment Tribunal— (a) that his employer has made a deduction from his wages in contravention of section 13 (including a deduction made in contravention of that section as it applies by virtue of section 18(2)), […]

(2) Subject to subsection (4), an employment Tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with— (a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or […]

(3) Where a complaint is brought under this section in respect of— (a) a series of deductions or payments, or … the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received. […]

(4) Where the employment Tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the Tribunal may consider the complaint if it is presented within such further period as the Tribunal considers reasonable.

[38]Reg 30(2) WTR Regs provides, as relevant: (2) […] an employment Tribunal shall not consider a complaint under this regulation unless it is presented –(a) before the end of the period of three months […] beginning with the date on which it is alleged that […] the payment should have been made;

(b) within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three […] months.

[39]The Court of Appeal in Palmer v Southend-on-Sea Borough Council

[1984] ICR 372

at [34] held that to construe the words ‘reasonably practicable’ as the equivalent of ‘reasonable’ would be to take a view too favourable to the employee; but to limit their construction to that which is reasonably capable, physically, of being done would be too restrictive. The best approach is to read ‘practicable’ as the equivalent of ‘feasible’ and to ask: ‘was it reasonably feasible to present the complaint to the Industrial Tribunal within the relevant three months?’

[40]In Walls Meat Co Ltd v Khan

[1979] ICR 52

at p.56, Denning LJ held that the following general test should be applied in determining the question of reasonable practicability. ‘Had the man just cause or excuse for not presenting his complaint within the prescribed time limit? Ignorance of his rights – or ignorance of the time limit – is not just cause or excuse, unless it appears that he or his advisers could not reasonably have been expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and he must take the consequences.’

[41]In the same case (at p.61), Brandon LJ drew a distinction between a Claimant who is ignorant of the right to claim, and a Claimant who knows of the right to claim but is ignorant of the time limit: ‘While I do not, as I have said, see any difference in principle in the effect of reasonable ignorance as between the three cases to which I have referred, I do see a great deal of difference in practice in the ease or difficulty with which a finding that the relevant ignorance is reasonable may be made. Thus, where a person is reasonably ignorant of the existence of the right at all, he can hardly be found to have been acting unreasonably in not making inquiries as to how, and within what period, he should exercise it. By contrast, if he does know of the existence of the right, it may in many cases at least, though not necessarily all, be difficult for him to satisfy an industrial Tribunal hat he behaved reasonably in not making such enquiries.’ Findings of fact and conclusions

[42]The Claimant notified ACAS on 30 June 2018 of his intention to issue proceedings; the EC certificate was issued on 11 July 2018; the ET1 was presented on 20 July 2018. The unauthorised deductions claim

[43]Under the WTR, the worker has three months from the date of each nonpayment to bring a claim. Time limits are more favourable for claims brought as claims for unauthorised deduction from wages, because of the ‘series of deductions’ provision in s.23(3) ERA, although any claim presented on or after 1 July 2015 will be limited to two years’ backdating, by reason s.23(4A) ERA (subject to the King case referred to below).

[44]The Claimant agreed in cross-examination that the MPTS made its last payment to him on 5 March 2018, in relation to an invoice of 23 February 2018 for a hearing which had been cancelled. If, as Mr Hare submitted, time ran from 5 March 2018, the claim was presented six weeks and four days outside the three-month time limit. Because the Claimant did not contact ACAS until 30 June 2018, he did not gain any extension because of the conciliation process.

[45]The Claimant contended that time ran from the date of the termination of the agreement with the MPTS. In his written closing submissions the Claimant gives a date of 4 April 2018.. If time ran from that date, because he contacted ACAS within three months of it, the extension afforded to him by reason of the conciliation process means that time expired on 11 August 2018, and his claim was in time.

[46]In his submissions, the Claimant asserted that ‘the starting point for limitation is the date of the termination of the employment relationship’ (para 94). However, in the next paragraph, he asserted that ‘pursuant to s.23(3) ERA each failure is a deduction’. He submitted that there was ‘no reference to last payment date in any statutory provisions or authority identified by the First Respondent’ and relied on the fact that the Respondent could have engaged him to sit on a hearing at any time up to the termination of the agreement.

[47]I asked him in the course of his oral submissions to explain in greater detail what the basis was for his submission that time ran from the termination date. He confirmed again that his case was that an additional payment should have been made to him in respect of holiday pay each time he was paid by the Respondent. He accepted that the last payment made to him was on 5 March 2018. However, he argued that ‘the right survived the payment in March 2018, it was not extinguished’; he argued that all of the accrued holiday pay, unpaid throughout his time with MPTS, and including the amount not paid on 5 March 2018, ‘crystallised’ at the termination of the contract. The Claimant identified the ‘unauthorised deduction’ on which he was relying for the purposes of his claim as the failure to pay all the outstanding holiday pay on termination.

[48]In support of his argument the Claimant referred me to King v The Sash Window Workshop Ltd

[2015] IRLR 348

EAT,

[2018] ICR 693

ECJ. I do not consider that case assists the Claimant: the worker brought his claim in time; it was not a case about limitation, rather it concerned the extent to which the entitlement to take annual leave can be carried over from one period to the next.

[49]I am not persuaded by the Claimant’s analysis. At no point in his evidence or submissions did he suggest that there was any restriction on his ability or willingness to take annual leave during his time with MPTS, only that the Respondent had not included payment in respect of annual leave when it discharged his invoices.

[50]If the Claimant was a worker of MPTS, and entitled to holiday pay, I conclude that he should have received that pay for the final time on 5 March 2018: that was the last occasion on which it could be argued that any ‘wages were deducted’ (for the purposes of s.23(2)ERA), and the last date on which any such ‘payment should have been made’ (for the purposes of Reg 30(1)(b) WTR).

[51]There is nothing in the ERA or the WTR, or indeed in King, to suggest that the termination of employment gives rise to a fresh cause of action, which sets the clock running again in respect of a claim brought by reference to Reg 16. I accept Mr Hare’s submission that, if the Claimant’s claim is to proceed any further with this claim, he requires an extension of time, and I go on to consider whether I should exercise my discretion to grant such an extension.

[52]Was it reasonably practicable (i.e. reasonably feasible) for the claim to be presented in time?

[53]As for the reasons for the delay, the Claimant does not suggest that he was unaware of his right to bring a Tribunal claim for holiday pay. In his closing submissions the Claimant relied in part on a genuine and honestly-held view that time ran from termination, and in part on the handing-down (on 13 June 2018) of the Supreme Court’s judgment in Pimlico Plumbers v Smith

[2018] ICR 1511

. In his oral submissions, he elaborated that it was not so much that he did not realise that he might have a claim against the MPTS until the Pimlico Plumbers decision was handed down; rather, he preferred to wait before issuing proceedings until the legal position had been ‘finally decided’. He asked rhetorically why he would put himself, and indeed the Respondent and the Tribunal, to the trouble of litigation, if the Supreme Court’s decision in Pimlico Plumbers was unfavourable to him.

[54]The debate as to worker status long predated the Supreme Court decision in Pimlico Plumbers. The Claimant alluded in his closing submissions to the long line of authority in recent years on the subject. All of it was binding on the Tribunal, and could have been relied on by him, had he issued proceedings earlier, including the decisions of the EAT and Court of Appeal in Pimlico Plumbers itself, both of which held that Mr Smith was a worker for the purposes of the ERA.

[55]I conclude that the Claimant was aware at the material time of his right to bring proceedings, but elected not to do so. I do not consider that waiting for the last word on the subject provides good grounds for extending time.

[56]As for the Claimant’s belief that time ran from the date of termination, I considered whether he behaved reasonably in forming and holding to that belief. Given his legal training, which I refer to below, he was well placed to make his own enquiries, to consult the relevant practitioner textbooks, or to do his own research online (I note that he did an employment law module during his BPTC in 2011/2012). I heard no evidence that he did so. Nor did I hear any evidence that that he took steps to obtain legal advice. I conclude that the Claimant did not act reasonably in not making further enquiries to establish the position.

[57]In my judgment, it was reasonably practicable for the Claimant to present his claim in time. Consequently, the Tribunal lacks jurisdiction to hear the claim of unauthorised deduction from wages, and it is dismissed. The discrimination claims

[58]With regard to the Claimant’s claim in relation to written feedback from fellow Panel Members, suggesting that he should show more deference to more experienced Members, that took place in around February 2015. It was a single incident, and time ran from the date of the incident. His claim was brought over three years out of time.

[59]The Claimant then complains about an alleged failure to deal satisfactorily with his grievance about this incident, between August and October 2015. That claim was presented over two years out of time.

[60]As for the Claimant’s two applications to be a Panel Chair, the first decision not to appoint him was notified to him on 17 September 2014. He asked for feedback, which was provided on 19 September 2014. The reasons given included the fact that he had scored one point below the minimum threshold for appointment. The letter informed him that no appeal lay against the decision. Nonetheless, he lodged an appeal on 21 September 2014 and he received a response on 26 September 2014. The Claimant agreed that he took the matter no further on that occasion.

[61]The Claimant applied again the next year, but was informed on 1 May 2015 that he had been unsuccessful. He asked for feedback, which he received on 14 May 2015: although he met the threshold in relation to a case study exercise, he fell short of it (by 1.5 points) in relation to the interview.

[62]He raised a grievance on 15 May 2015, which he addressed to the Chair of MPTS, HHJ David Pearl. The Claimant was notified on 5 June 2015 that his grievance was not upheld. The Claimant agreed that this concluded the matter so far as the MPTS was concerned, while maintaining that it was ‘not closed in my eyes.’

[63]Mr Hare submits that the last possible act on which the Claimant can rely is the rejection of his request for a reconsideration of the decision not to appoint him as a Chair: 5 June 2015.

[64]The Claimant submitted that the fact that the MPTS never appointed him to the position of Panel Chair meant that the discrimination persisted until the termination of his agreement, and amounted to ‘conduct extending over a period’ within the meaning of s.123(3)(a) EqA.

[65]I do not accept the Claimant’s argument. Firstly, I do not consider that the ‘deference’ feedback, and the associated complaint, form a continuum with the decisions not to appoint the Claimant as Chair: they are acts/omissions of a different character, and there was nothing before me to suggest a prima facie case that the two groups of allegations were linked.

[66]As for the failure to appoint the Claimant as Chair, even if those two groups of allegations were linked, the statutory language (s.123(3)(b) EqA) is clear: a failure to do something is to be treated as occurring when the person in question decided on it. Accordingly, time ran from the point at which the Respondent decided not to appoint the Claimant as a Panel Chair, which was 1 May 2015. He presented his claim some three years out of time. Even if the refusal of his request for a reconsideration is treated as a fresh act, his claim was still just short of three years out of time.

[67]Accordingly, the Claimant requires an extension of time, if the Tribunal is to accept jurisdiction.

[68]In considering whether it would be just and equitable to extend time in respect of any of the three claims, I had regard to the following factors. 68.1. The extension of time sought is very substantial indeed: some three years. 68.2. The fact that the Claimant was seeking redress internally by way of a grievance would only be relevant for the duration of the grievance process; that argument does not assist him. 68.3. In oral evidence the Claimant agreed that the reason he did not complain of discrimination earlier was because he did not wish to prejudice the income he received from the MPTS; that is not a satisfactory explanation for the delay. 68.4. The Claimant again argued that his honestly held view was that time ran from the end of the relationship; and that his timing was influenced by the Supreme Court decision in Pimlico Plumbers. Dealing with the second of those factors, the same considerations arise as under the unauthorised deduction from wages claim: there was ample authority before that point, by reference to which the Claimant could have advanced an argument that he was an employee within the extended definition of the EqA. As with the unauthorised deduction claim, the Claimant had every opportunity to seek advice as to time limits; there was no evidence that he did so; his own research would have revealed to him that his ‘conduct extending over a period’ argument was unsound. 68.5. Turning to the balance of prejudice, plainly the Claimant would suffer prejudice by not being able to pursue these matters to a final hearing, if time were not extended. However, insofar as I could make a preliminary assessment of the potential merits of the case, they did not appear to me to be strong. There was nothing before me which went beyond a bare assertion that age was a material factor in the matters complained of; I was not taken to anything which might assist him in making good that assertion. 68.6. On the other hand, there is clearly identifiable prejudice to the Respondent, if time were extended: by the time the Claimant issued proceedings, the allegations were historic. Discrimination claims are fact-sensitive, and the mental processes of the alleged discriminators are always subjected to close scrutiny. In my judgment, the effect of the passage time on the ability of witnesses to recall the matters in question, and the minutiae of their reasons for acting as they did, would inevitably have an impact on the cogency of the evidence. I conclude that the prejudice to the Respondent outweighs the prejudice to the Claimant.

[69]Weighing all these factors in the balance: the very long delay, the absence of a satisfactory explanation for it, and my conclusion as to the balance of prejudice, I consider that it is not just and equitable to extend time in relation to the Claimant’s claims of age discrimination. Accordingly, the Tribunal has no jurisdiction to hear them, and they are dismissed. THE CASE AGAINST THE NMC Findings of fact The Claimant’s portfolio of work

[70]The Claimant describes his career as a ‘portfolio career’. His CV shows that since 2012, when he was first appointed by NMC, he has been (among other things): an ombudsman at the Financial Ombudsman Services; an accredited mediator and mediation advocate; an arbitrator in a variety of different types of dispute; an independent disciplinary member/chair of employee disciplinary and grievance hearings; and an independent investigator into serious disciplinary matters, usually relating to senior figures in organisations.

[71]In 2010/11 the Claimant did a postgraduate diploma in law; in 2011/12 he did the Bar Professional Training Course, both at the College of Law. In July 2012 he was called to the Bar. In 2013/14 he studied for an LLM in Dispute Resolution at Queen Mary University of London. He completed pupillage in February 2018 and now practises as a barrister in a range of areas of law, including professional regulatory law and employment law.

[72]In addition to his work as a Panel Member for the MPTS, and as a Panel Chair for the NMC, he has also sat as a Member for the Chartered Institute of Management Accountants and the Construction Industry Council. As for his work for the MPTS, the Claimant was engaged for four years from April 2014 to April 2018. During that period, he sat in hearings on 98 days.

[73]In 2014 he made an application to sit as a Chair of the Professional Conduct Committee of the Health and Care Professions Council, in which he described himself as ‘self-employed’ and gave his job title as ‘Lay Regulatory Panel Chair’.

[74]Throughout this period he also sat as a Magistrate. In 2019 he was appointed as a Judge of the First Tier Tribunal (Social Entitlement Chamber). The structure of the NMC

[75]The NMC was established under the Nursing and Midwifery Order 2001, SI 2002/253 (‘the Order’). Its function is to regulate nurses and midwives in the UK, establishing standards of education, training, conduct and performance. Its governing body is referred to as the Council. By article 3(9) of the Order, the NMC has two committees: the Investigating Committee and the Fitness to Practise (‘FTP’) Committee (‘the Practice Committees’).

[76]The NMC is under a statutory duty to investigate any allegations made against a registrant (a nurse, midwife or nursing associate) that their fitness to practise is impaired because of misconduct, lack of competence, a conviction or caution, their physical or mental health, or not having the necessary knowledge of English. Where such an allegation is made, NMC Case Examiners conduct an investigation and, where they consider there is a case to answer, the allegation is referred to the FTP Committee for a hearing.

[77]The Order provides (sch. 1, Part 1, para 15(3)): The Council may not employ any member of the Council or its committees, or sub-committees.

[78]Schedule 1 of the Order empowers the NMC to ‘pay its staff such salaries, allowances and expenses as it may determine […]’. By contrast, it is empowered ‘to make such provision in respect of its […] members of its committees and sub-committees […] for the payment of fees and allowances’. Similarly, it is empowered to make arrangements for pensions for staff, but there is no equivalent for committee members.

[79]The Schedule to the Nursing and Midwifery Council (Practice Committees) (Constitution) Rules 2008, made under the Order, (‘the Rules’) provide that the NMC shall determine the duration of the term of appointment of FTP Committee members (usually four years), but their appointment is limited to a maximum of two terms. As at October 2019 the FTP Committee was made up of around 300 appointed Members.

[80]There are four types of FTP hearings: interim order hearing, where the panel considers whether to vary an interim order; substantive hearings, where an allegation is considered; substantive order review hearings; and restoration hearings, where the panel considers an application by a registrant for restoration to the Register. Chairs of the FTP Committee also sit on premeetings, to issue case management directions to the parties.

[81]Under the Rules a FTP panel must be composed of three people, at least one of whom must be a registrant, and one a non-registrant; the Panel Chair may be either. The panel is supported by a Panel Secretary, who provides administrative assistance, and by an independent Legal Assessor, who attends to give legal advice.

[82]The number of Panel Members appointed at any given time varies in response to levels of work. Mr Johnson’s role is to ensure that there are sufficient members at any given time to attend all FTP hearings and meetings. The requirement for new appointments (or reappointments) varies from time to time, usually depending on external circumstances.

[83]The Rules provide that members of the NMC’s Council may not be appointed to its Practice Committees. The appointment process

[84]The process of appointing members is overseen by the Appointments Board, which was established under the Rules. The Board consists of up to five people; they are appointed for a maximum of two fixed terms and are independent of the NMC.

[85]The Board must ensure that only suitably qualified individuals are recommended to the Council for appointment as Panel Members. In his witness statement Mr Johnson described the requirements as follows: ‘Panel Members are required to have the skills and attributes necessary to act as fair, impartial and independent members of a fitness to practise panel. The skills and attributes include having a genuine interest in protecting the health and well-being the public, having a high level of integrity with a strong sense of public responsibility as enshrined in the ‘Seven Principles of Public Life’, and the ability to assimilate complex evidence in a fair and balanced way in order to arrive at objective and reasoned decisions.’

[86]The NMC uses specialist external agencies to assist with the appointment of members. The agency advertises the position and conducts an initial paper sift against competencies provided by the NMC: values and motivation, analytical skills and decision-making, relevant knowledge and working with others. Based on their assessment, the agency recommends candidates for interview and provides support during that process. Following the interview candidates attend an induction event and a list of appointable candidates (with reasons) is then provided to the Appointments Board, which scrutinises the process and the recommended candidates, before providing the Council with a final list of recommended appointees. The Council then sends letters of appointment to the successful candidates,

[87]The NMC advertised for 100 Panel Chairs in around 2011. The advert contained the following statement. ‘Time commitment You will be expected to be able to serve the NMC for at least 30 days a year […]’

[88]The Claimant was appointed as a non-registrant, Panel Member Chair of the FTP Committee (known at the time as the ‘Conduct and Competence Committee’) for four years from 16 April 2012. He was reappointed in 2016 for a further four years, ending on 5 April 2020. As might be expected, Chairs generally take the lead at hearings, and also complete a case preparation questionnaire for those hearings in which they sit, the purpose of which is to inform the NMC of any administrative issues which are have arisen. He also sits as a Chair in registration appeal hearings, dealing with appeals by people who have been refused registration by the Registrar. The written terms of engagement

[89]On 9 May 2012 NMC wrote to the Claimant confirming his appointment and saying: ‘You are not an employee or an office holder of the NMC. Your appointment as a Practice Committee member makes you eligible to provide services, as an independent contractor, to the NMC, as a panellist or a Panel Chair.’

[90]The terms of the appointment were set out in the Panel Member Services Agreement (‘PMSA’) of 16 April 2012.

[91]Clause 8 of the 2012 PMSA provided as follows: ‘The Panel Member shall provide the Services to the NMC as an independent Panel Member and nothing in the Agreement shall create a relationship of employer and employee between the NMC and the Panel Member’.

[92]Clause 9 provided as follows. ‘Nothing in this Agreement shall render the Panel Member an employee, partner or agent of the NMC […]’

[93]The inclusion of this wording reflected the terms of the Order. It also reflected the view of HMRC, following engagement between it and the NMC in 2011 as to whether members were office holders. By letter dated 4 May 2012, the HMRC concluded that ‘from 6 April 2012, the individuals scheduled to sit on a FTPP would not be classed as employees of the NMC for tax and NIC purposes, but would instead consider them to be self-employed based on the information supplied.’

[94]By letter dated 5 May 2016 the Claimant was reappointed; that letter included the following paragraph: ‘I am required to remind you that as a Panel Member you are not an employee or an office holder of the NMC. You are appointed as a Practice Committee member who is eligible to provide services, as an independent contractor, to the NMC as a fitness to practice Panel Member. The terms upon which you will be invited to provide services as a Panel Member following your appointment are set out in the PMSA.’

[95]The terms were set out in a further PMSA, signed and dated by the Claimant 7 May 2016.

[96]Clause 11 of the 2016 PMSA provided (in identical terms to Clause 7 of the 2012 PMSA): ‘Supply of Services 11. The Panel Member shall provide the Services as requested from time to time by the NMC.11.1 The NMC shall provide the Panel Member with reasonable notice of any request to provide the Services. If the Panel Member cannot provide the Services on the dates and at the time so notified, the Panel Member shall promptly inform the requesting person or department at the NMC of that fact.

11.2 The NMC and the Panel Member agree and acknowledge that:11.2.1 the NMC is not obliged to request the Panel Member to provide the Services;

11.2.2 the Panel Member is not obliged to provide the Services if so requested by the NMC;

11.2.3 the Panel Member has no right to provide the Services; and

11.2.4 where the NMC requests the Panel Member to provide the Services in respect of the case and the Panel Member agrees to provide those Services the Panel Member will use all reasonable endeavours to attend the hearing of that case on each and every day on which it is heard including where it is adjourned for any reason and concluded later than originally anticipated.

11.3 The Panel Member agrees to travel within the United Kingdom as may be reasonably necessary for the proper provision of the Services.

11.4 The Panel Member shall be available on reasonable notice to provide any information advice or assistance about the Services as the NMC may reasonably require.

[97]Clauses 12-14 of the 2016 PMSA provided: ’12. In performing the Services the Panel Member shall operate, and have the status of, an independent contractor and nothing in this Agreement shall create a relationship of employer and employee between the NMC and the Panel Member’. […] 14. The Panel Member is an independent contractor and accordingly shall be responsible for accounting in full to the appropriate authorities for any income tax and national insurance contributions and any other levy (if any) in relation to any Fees or Expenses paid to the Panel Member under this Agreement.’

[98]Clauses 17 to 21 set out the obligations on the Panel Member. By way of example: 98.1. Clause 17.4 required the Claimant to ‘comply with all procedures of the NMC relevant to Panel Members in force at the time’, including the Code of Conduct and Service Standard for Panel Members, the Conflict of Interest policy, the performance feedback process, and the NMC’s procedure for addressing complaints against Panel Members. 98.2. Clause 18 required him promptly to provide any assistance and information (in writing if so required) required of him by the NMC. 98.3. Clauses 36 to 43 imposed obligations on the Claimant in respect of dealing with confidential information.

[99]Clause 22 set out the obligations on the NMC. By way of example: 99.1. Clause 22.2 required it to provide to the claimant with regular communications in relation to NMC guidance and procedures, and feedback in relation to the Panel Member’s performance; 99.2. Clause 22.3 required it to provide the Panel Member with ‘such training in the performance of the Panel Member role as it considers appropriate, which may include refresher training from time to time or compulsory training for Panel Members not performing to the required standard.’

[100]Clause 38 of the agreement gave the NMC the power to suspend the Panel Member from performing any services, if he breached the Code of Conduct. Clause 39 gave the NMC the power to terminate the agreement in prescribed circumstances, for example if he committed a serious breach of the agreement, or any obligation under it. By Clause 46, the Panel Member could terminate the agreement on three months’ written notice.

[101]The main body of the PMSA was then supplemented by a series of Schedules, Appendices and Annexes, to the terms of which the Claimant confirmed his acceptance by signing the PMSA.

[102]Schedule 1 set out the services to be provided by the Panel Member. Some were merely descriptive of the work (‘reading, listening to, considering and testing the evidence and submissions presented to the panel to reach appropriate decisions and outcomes’). Others imposed specific requirements, such as keeping up-to-date with Council policies, providing feedback following provision of the Services when requested to do so, and participating in all required Panel Member training events. The Claimant put to Mr Johnson in cross-examination that this list was ‘directive’. Mr Johnson agreed that, as a Panel Chair, he was required to do all of the things in the list, but maintained that the manner in which he chose to do them was a matter for him.

[103]Annexe 1 contained the ‘NMC Practice Committee Panel Members, Code of Conduct and Service Standards’. As might be expected, the Code contains statements of ethical principle; for example, it incorporates the Seven Principles of Public Life, including the principle of objectivity: ‘Act and take decisions impartially, fairly and on merit, using the best evidence and without discrimination or bias’.

[104]Paragraph 6.4 of the Code reiterates that Members must: ‘carry out their work on the practice committees in a fair and impartial manner’.

[105]Paragraph 5 provides: ‘In providing their services, Panel Members are expected to maintain high standards of conduct and behaviour at all times. This Code of Conduct and the Service Standards set those requirements or the required standard of conduct and behaviour.’

[106]Later provisions provide that Panel Members must: ‘work collaboratively with panel colleagues, other parties to the proceedings and NMC staff administration’ (paragraph 10.1); ‘participate in the training programmes provided for Panel Members’ (paragraph11.1 ); and ‘conduct their role in accordance with the NMC’s competencies (attached as Appendix A) for panel members and participate in the panel member feedback process, complying with any agreed outcomes’ (paragraph

11.2 ).

[107]Paragraph 16 provides that Panel Members ‘should ensure’ they: ‘are available to provide their services as set out in their terms and conditions of appointment in the PMSA; inform the Panel Support Team at the earliest opportunity if they have to withdraw from a panel to which they have been booked. It is expected that this would be for exceptional reasons only; inform the Panel Support Team at the earliest opportunity if they become unable to provide their services for any period of time.’

[108]In paragraphs 17 to 19, the Code provides that compliance with the Code is ‘obligatory’; that the NMC will take ‘appropriate action’ to deal with any breach of the Code including, where the breach is serious, termination of the appointment; and that such breaches will be dealt with ‘in accordance with the Procedure for addressing concerns about Panel Members of the NMC’s practice committees … the NMC will ensure that a fair process is followed’.

[109]Appendix A to the Code sets out the core competencies of Panel Members, the purpose of which is ‘to guide panellists in their role’. Annexe 2 contained the NMC’s conflict of interest policy; Appendix A to that Annexe sets out in some detail the legal principles relating to conflict of interest and bias, including the well-known guidance in Locabail (UK) Ltd v Bayfield Properties Ltd

[2000] QB 451

[110]Annexe 3 contains the ‘performance feedback process for Panel Members of the NMC’s Practice Committees’. This includes the following provisions: ‘8. The NMC has a responsibility both to seek to improve performance, and also to ensure that any concerns relating to the conduct or performance of Panel Members which are brought to its attention and which could impact adversely on public protection or public confidence in the NMC, are addressed in a timely and effective manner. 9. The NMC, in common with other health professionals regulators, has put in place a performance feedback process for panel members who sit on its practice committees. It is intended to be a light-touch process which respects the independent nature of Panel Members’ roles and decision-making. It does not include any individual appraisal process. […] Outcomes of the feedback process […] 16. Issues relating to individual performance: 16.1 where appropriate any such issue will be addressed initially by the panel support team manager in accordance with paragraphs 16 to 19 of this policy.’

[111]Paragraphs 17 to 21 then set out how issues relating to individual performance members will be dealt with in more detail: the Panel Support Team Manager is empowered to raise performance or conduct concerns with the individual; s/he will instigate action at the level s/he decides is appropriate; s/he might require the individual to undergo further training, attend further meetings or submit to ‘ongoing monitoring’; where an issue is regarded as serious, persistent or deliberate, the matter may be considered ‘as a complaint under the Process for addressing complaints against Panel Members of the NMC’s Practice Committees, which may in serious cases lead to removal or suspension of panel membership’. That complaints procedure is contained at Annexe 5. The induction process

[112]The Claimant was required to attend two days of induction training. Originally this formed part of the appointments process (although I accept Mr Johnson’s evidence that no candidates were filtered out as a result of the induction training), more recently after formal appointment. The training provided an introduction to the statutory framework which governs the NMC and FTP hearings. The roles and responsibilities of participants in the process (legal assessors, case presenters, registrants’ representatives and so forth) were explained.

[113]The Claimant was also required to attend one day’s training per year, for which a fee was paid. The purpose of the training was to pass on feedback which the NMC had received from the Professional Standards Authority (the body which regulates all healthcare regulators), registrants and witnesses. Mr Johnson explained in his statement that, because the material covered is unique to the NMC, it was not training which Panel Members could be expected to source themselves from a third-party supplier. Attendance at the training day was mandatory. The system of booking, cancelling and withdrawing

[114]Hearings took place in a number of regional hearing centres, including Edinburgh, Cardiff and Belfast; the location was determined by the home address of the registrant. If the Claimant did not wish to travel to one of those centres, for any reason including distance, he was free to decline the offer.

[115]The Panel Support Team requested the Claimant to provide his availability over a six-month period. The NMC then notified him when he would be required (‘block booking’). About a month before a particular hearing, it was allocated to Panel Members whose availability had previously been secured. If there were not enough block-booked members to cover all the hearings, the Panel Support Team sent round an extra availability request; the hearings were then distributed between those Members who indicated that they were available.

[116]Under the original block booking system, if a hearing was cancelled or went short, the Claimant would still be paid in full. In October 2017, that system was changed and a payment of 50% of the fee was paid, if less than 14 days’ notice was given of cancellation. If the hearing went short, or was cancelled once it had started, the NMC paid the hearing fee in full.

[117]The number of days on which the Claimant sat for the NMC varied greatly over the years. It was at its highest (129 days) in 2013, around the time he was studying for his LLM. Between 2014 and 2017, it varied between 61 and 98 days. In 2018, once the Claimant had begun to practise as a barrister, it reduced substantially to 17 days; and in 2019 he had sat only 7 days by the beginning of the hearing in November.

[118]There was ample evidence of occasions on which the Claimant turned down sitting days. On 26 January 2016 he was asked if he had the availability to cover hearings longer than a week the following month, two of which were in London, one in Scotland. The Claimant replied the same day that he could do any of the London hearings; a few minutes later he wrote to say that, in fact, he could not do any of the dates, because he had another commitment.

[119]On 30 June 2016 the Claimant replied to a query about his availability in July by providing details of his non-availability over the whole of the summer, including by reason of the fact that he had a two-week case for the GMC, before going on holiday for three weeks, returning to sit on another GMC case for two weeks.

[120]The Claimant could withdraw from a case even after he had been booked, without a requirement to provide an acceptable reason; the only requirement was that he notify the allocation team. By way of example, on 26 February 2019, the Claimant wrote a single line email to the Panel Support Team (‘Please could I be released from my booking for Tuesday and Wednesday 19th and 20th March?’). In 2014/14 he withdrew from a number of dates in order to go to New Zealand. There was no evidence that he was penalised for withdrawing in this way.

[121]Mr Johnson accepted that there was an ‘expectation’ that Panel Members would offer dates each year. I was referred to a ‘Report on Panel Members performance’ by the Appointments Board, which recorded as part of the discussion that a number of Panel Members: ‘have not provided sufficient sittings, the Panel Support Team have discussed this with each Panel Member and gained assurances that sitting numbers will increase over the next six months’.

[122]The Claimant relied on this as an indicator that, at the very least, pressure was brought to bear on Panel Members to increase the number of sittings they were offering. Mr Johnson on the other hand said that this was consistent with the fact that there was an expectation, and that the discussion would be likely to be along the lines of ‘is there anything we can do to help?’ On the evidence available to me, I find that members were spoken to if they were not offering dates, and encouraged to do so. However, members were not required to offer a specific number of dates, and were not sanctioned if they did not do so. I heard no evidence that pressure was exerted on them.

[123]As for any purported obligation on the part of the NMC to offer a certain number of dates per year, the Claimant was unspecific as to what that number was. I was referred to correspondence in 2015, when the number of days for which members were block-booked was reduced because too many members were being booked for the number of hearings available. The Claimant wrote to the NMC on 3 March 2015, expressing his dissatisfaction [original format retained]. ‘As you will know over the last three years I have been a loyal and one of your most active chairs. When the NMC were in need of help on numerous occasions and for many CHRE initiatives to get back logs cleared to hit key performance indicators I have played a role in you achieving these. I have never let you down or called in sick etc. The quid pro quo is that the NMC has provided me with plenty of work and I haven’t tried too hard to find other work. I have prioritised NMC work over others like the GMC and others that I do, often turning them down to the benefit of the NMC. The system of working was mutually very beneficial and it was one that suited me very well. I must say that I was very disappointed therefore only to get 15-ish days for the entire next six-month period. I also responded to the call for assistance for the recent 30th March and am disappointed I got nothing despite the great big long list of hearings and me responding that I was available for all of them including a long case that spanned two weeks. Regrettably, if this becomes a permanent feature of the new allocation model, I can’t afford to continue to prefer the NMC and potentially have big gaps in my diary. It will be sad but I’ll have to switch my strategy to prioritise other work. I know I’m not alone in this regard especially for those for whom this kind of work is an important part of their personal or family income.’

[124]In an email several days earlier (3 March 2015) to another member the Claimant had written: ‘I do understand that the NMC is under no obligation to provide any defined volume of work, that it is free to allocate work on any basis it wishes to. It is the recent ‘change’ of approach and its abruptness which I question. If the NMC would prefer, as you suggest, that I prioritise working elsewhere then that is its free choice. I think it is sad to ask that of those who responded to the organisation when it needed help most. I also struggle to see in whose interest that lies. Similarly, it seems a very abrupt policy change to view matters in that way and to prefer to allocate work to those who have the lowest number of dates.’

[125]The Claimant went on to express his view that it was inappropriate for the NMC to favour the allocation of work to those who had sat less, rather than those (like him) who had sat a great deal. He concluded: ‘As long as the NMC are cognisant of the consequences of pursuing the policy then of course it can do what it thinks best but it can’t expect those like me to be there to the same extent once we have taken your suggestion of prioritising work elsewhere.’

[126]On 23 March 2015 Mr Johnson replied to the Claimant at some length including the following passage: ‘I realise that the reduction in available work may mean that you choose to sit less for the NMC and take on other work to fill your diary with work that gives you a high degree of certainty, if that is the case then that is very much your decision and one which the NMC would not wish to seek to influence.’

[127]The Claimant relied on the fact that there was always a throughput of cases which would need to be allocated to Members. Mr Johnson did not disagree, although he made the point that the workload varied greatly from year to year. Limits on the Claimant’s ability to work for others

[128]The parties in the proceedings before the Claimant are the registrant and the NMC itself. The Claimant was not permitted to represent nurses and midwives in his capacity as a barrister. Otherwise the NMC placed no restriction on the type or amount of work which he undertook for other organisations, including other regulators. That the Claimant understood this is apparent from an email which he sent to Mr Johnson on 27 March 2014 in which he wrote to Mr Johnson as follows: ‘[…] I was wondering if I might ask some advice. I noted your previous experience within a financial regulator and was wondering if you had any tips on how I might pick up panel work in that sector? I seem to have picked up healthcare regulatory work quite well (BACP and more recently GMC too) but haven’t had much luck with Pensions/FCA etc. I did previously work in the City as a trader for 4 years and then ran a number of businesses for 15 years and so do have broader commercial experience’. ‘Pressure to toe the line’

[129]Members had an obligation to act impartially, and independently of the parties. The evidence of Mr Johnson was that ‘at a hearing Panel Members retain unfettered autonomy and independence and are not subordinate to the NMC’.

[130]The Claimant disagreed with that proposition and stated that he: ‘always felt pressure to toe the line and make decisions in accordance with the Second Respondent’s world view. I chose to ignore that pressure and do what I thought was right regardless, but I felt this would impact on how I was perceived within the organisation, limit the likelihood that I would progress and be allocated to particular cases’.

[131]The Claimant drew my attention to an email he received from Ms Claire Davidson (Communications Officer) on 10 January 2013. He had received a ‘learning point’ about a specific case from the Council for Healthcare Regulatory Excellence (‘CHRE’), the NMC’s regulator at the time; he had then contacted the Legal Assessor on the case to discuss the point. In her email Ms Davidson pointed out that there should be no contact between NMC Panel Members and legal assessors outside the hearing room, ‘as they are independent of both the NMC and the panels.’ The Claimant suggested that this contradicted the NMC’s case ‘that I was free to decide how to discharge my duties’. I find that it does not: Ms Davidson was simply reminding him of an ethical principle. Moreover, the point she was making itself emphasised the separation of functions as between Members, Legal Assessors and the NMC.

[132]In his oral evidence the Claimant said that he was ‘entirely subordinate to the NMC and it takes great strength of character to resist.’ I found that evidence to be implausible. I have no doubt that, if he had felt that the NMC was interfering in any way with his impartiality as a decision-maker, he would have had no hesitation in saying so. I was not satisfied that there was any evidence that the NMC sought to interfere with the independence of its Members.

[133]In his witness statement Mr Johnson referred to an email from the Claimant to a third-party, whose name had been redacted, but who appeared to be connected with Swansea University, and was writing to the Claimant to introduce him to a criminologist with an interest in professional regulation, who had worked with organisations including the NMC. The correspondent observed that the Claimant and the criminologist might have interests in common. The Claimant expressed enthusiasm and the correspondent wrote to the criminologist to introduce him to ‘Robin, who is from the NMC’. Later the same day the Claimant replied to both: ‘Delighted to have been included in this correspondence. Just for the record, I am a Panel Chair at the NMC but that is an independent role and I don’t hold myself out to be “from the NMC”.’ Payment and expenses

[134]Clause 23 of the 2016 PMSA provided that the relevant fees were to be ‘determined by the NMC from time to time’. Fees were fixed and nonnegotiable: a Panel Member was paid £310 for attending a full day hearing/meeting; a Panel Chair £340. Members were paid £260 for attending a training day. Some Members worked on a voluntary, unpaid basis, although at the time of the hearing, only one Member did so.

[135]The day rate has remained the same throughout the material period, but some terms have changed over time. Those changes were imposed unilaterally: for example, around 2014 the pre-hearing reading fee of £290 was reduced to £100; Members were originally provided with lunch at no cost, since around 2017 this benefit was withdrawn.

[136]Members invoice the NMC for work done at the end of the month; there is no set format for invoices.

[137]The NMC reimburses Members’ travel and accommodation expenses. The PMSA at Clauses 30 to 32 provides that expenses will be paid ‘in accordance with the policy in force at the time of the request for Services.’ The policy to which I was referred, which was dated October 2017, requires that all travel and accommodation arrangements should be booked online via Click Travel, a travel arrangement company which the NMC had appointed as its travel specialist. The policy sets out what expenses will and will not be covered; rail or air travel are reimbursed; subsistence and incidental expenses are included in the attendance fee. So, for example, meals (other than breakfast after an overnight stay) may not be reclaimed.

[138]There is guidance as to what type of ticket can be booked. By way of example, a Member may book a sleeper train between London and Edinburgh, where this provides better value for money than a flight and overnight hotel. Overnight accommodation will only be authorised in specific circumstances; the member is required to book the most cost-effective hotel option using the Click Travel system. Mr Johnson’s unchallenged evidence was that the Claimant had claimed expenses on limited occasions only, when conducting hearings outside London, for example in Cardiff and Scotland. Ability to substitute

[139]Mr Johnson’s evidence for NMC was that it does not permit Panel Members to provide a substitute, if they are unable to perform work which they had previously accepted, whether through ill-health or for any other reason. If the Claimant became unavailable, he contacted the Panel Support Team, which contacted other Panel Members and arranged for one of them to cover the work. The Claimant would not be entitled to charge the NMC a fee in those circumstances. The working day

[140]When booked for a hearing, papers were sent to the Claimant in electronic form before the hearing, and he was required to do any pre-reading, for which he was paid a set fee of £100. He could do this wherever and whenever he wished. If he required equipment to conduct that pre-reading, whether a desktop computer or tablet, he would have to provide it himself. Mr Johnson’s evidence was that, if the papers are particularly onerous, members may negotiate an enhanced reading fee, although he acknowledged that this occurs rarely.

[141]All FTP hearings are scheduled to start at 9:30 a.m. on the first morning. After April 2016, the facility to start on subsequent days at 9 a.m. was made available, but this was expressly at the discretion of the Chair. The Claimant was expected to attend the hearing centre in good time, to ensure a prompt start. He was required to sign in and out of the building for health and safety purposes (for example, in case of fire); the log was not monitored for timekeeping purposes. Thereafter, he ran and controlled the hearing: he set the timetable and determined the hours on which it sat, when it took breaks, when the parties were required to attend and so on. If he wished, he could decide on Day 3 of a 5-day hearing to finish at 3.30 p.m. If a hearing went part-heard, it was listed to resume on dates convenient to the panel and the parties. The panel notified the NMC of the new dates, and the NMC took steps to arrange a hearing room.

[142]Chairs, including the Claimant, were asked to read out a standard form of words when opening a Substantive Order Review Hearing. Mr Johnson’s evidence was that a number of Chairs declined to do so, and the NMC did not insist. When the Claimant had completed a hearing, he was sometimes assigned duty work, known as ‘stored’ or ‘cupboard’ work.

[143]In his statement the Claimant stated that he was ‘restricted in not being able to use my telephone, email or messaging.’ He gave no examples of this, and agreed that professional courtesy prevented him from using his phone during hearings. The Claimant wore a suit when sitting as a Panel Member, which he characterised as a ‘uniform’.

[144]The Claimant stated that he was ‘provided with all tools and resources required to do the work by the Second Respondent’. The only example he gave was ‘a Panel Secretary to draft our decisions’. The Panel Member forum

[145]Panel Members established a Panel Member Forum in 2013. They elect representatives to discuss issues affecting their roles. Other than the fact that the NMC circulates information to Panel Members on behalf of the forum (primarily for data protection reasons), all the other activities of the forum are carried out by Members. The forum occasionally invites members of the Appointments Board to feed back information to the Forum and vice versa. The applicability of policies and procedures

[146]Policies relating to family friendly leave and pay, disciplinary and grievance procedures, annual leave request and sickness absence which apply to employees of the NMC do not apply to Panel Members. Panel Members have no involvement with the NMC’s HR department; their contact is with the Listing, Hearings and Panel Support teams.

[147]Panel Members do not attend the staff conference which takes place annually, nor are they invited to social events, such as the Christmas party.

[148]The Claimant did not have an NMC email address or access to the NMC’s IT systems, including the intranet and internal chat board, which are available to employees. He was issued with a security pass by the NMC. Performance monitoring and feedback

[149]In mid-2013 the Claimant enquired about the criteria for reappointment and these were sent to him. ‘The criteria listed below allow us to fairly and transparently manage the expertise, skill sets and commitment of panel members that is compatible with current and future business need. This criteria needs to have sufficient flexibility to ensure that we match numbers required with the Fitness to Practice workload. Criteria – Panel Members  Compatible availability  Number of sittings and completion of sittings  Training attendance and e-learning completion  PSA and Decision Review Group learning points and appeals  Positive feedback and concerns raised  360° post panel feedback  Any other pertinent information available to the PST/NMC at the time of any appointment review. Criteria – Business Need  Number and type of panel members required to match FTP workload  Number and type of panel members required to match changing business needs of the NMC.

[150]On 24 December 2015 Ms Gina Sherma wrote to the Claimant, attaching what she described as his ‘Activity and Engagement report for 2014 and 2015’. This was a chart which set out his results against various criteria, with a separate column showing the average results of his peer group (Panel Chairs recruited in 2012). She wrote: ‘we have included the average results of this group to allow you to compare your own results with your peers which you may find useful for your own continuous development plan’.

[151]The statistics in the report included: 151.1. ‘rate of withdrawal’ from cases to which the individuals had been allocated: the Claimant scored 16.05% against a peer group average of 6.84%; 151.2. ‘exceptional feedback provided in 2014 & 2015’: the Claimant had a ‘concern count’ of zero against an average of 0.2%.

[152]Based on this report, Ms Sherma confirmed that she would be recommending that the Appointments Board consider reappointing him for a second term.

[153]In February 2016 the NMC introduced a performance benchmark process for Panel Members. Mr Johnson described the purpose of that process in his witness statement: ‘The purpose of this process was to provide Panel Members with an overview of their own performance for them to consider, to provide assurance to the Appointments Board and the Council that Panel Members were providing a quality service and to provide the Appointments Board with an evidential basis for proposing Panel Members for reappointment. Additionally, we had been contacted by a number of Panel Members requesting feedback on their performance.’

[154]In 2018 metrics for ‘hearing completion’ and ‘sitting days’ were removed from the performance benchmark. The Claimant contended that this was after he brought this case, indeed because he brought his case; there was no evidence to that effect. Mr Johnson’s evidence, which I accepted, was that the removal of those metrics was because it was recognised that some of the factors which cause a hearing not to complete were beyond the control of Panel Members (for example, if a registrant became unavailable). The removal of the ‘sitting days’ metric was based on the recognition that the number of days sat by a Panel Member was not a true measure of performance, and the fact that there was no obligation for Panel Members to accept a minimum number of hearings each year.

[155]Mr Johnson accepted in evidence that one Member’s appointment had been terminated before the end of his/her term for ‘insufficient days’; eight had not been reappointed since 2013. There was no evidence before me as to the reasons why those eight Members were not reappointed.

[156]At the end of each hearing the Claimant was asked to complete a 360 degree Feedback report about his fellow Panel Members, the legal assessor and the panel secretary; they also provided feedback about him.

[157]The Claimant also received feedback from the Decision Review Group. I reject his evidence that this feedback put limits on his independence; the purpose of the feedback was to ensure that written decisions properly articulated the panel’s reasons.

[158]Panel Members are now requested to complete a peer review questionnaire form in relation to hearings they have attended every six months. Mr Johnson’s evidence, which I accept is that: ‘this provides the Panel Members with the opportunity to provide any feedback to the NMC regarding how the hearing has been organised, but also any concerns regarding fellow Panel Members. Any feedback received is taken into account as part of the revised benchmark framework.’ Income tax and national insurance

[159]The Claimant was responsible for accounting to HMRC for any income tax and national insurance contributions due on the fees paid to him by the NMC.

[160]On 23 January 2013 the Claimant wrote to his accountant, seeking advice as to whether he could offset the cost of legal training against income on his tax returns. He explained that before 2010 he had done a limited amount of panel sitting for professional disciplinary hearings, and had applied for other roles as a Panel Member or chair, but perceived that he was not getting more work of this kind because he was not a lawyer. For that reason, he explained, he undertook a one-year postgraduate Diploma in Law (‘PGDip’), which he completed in 2011 at a cost of £8,600. He then did the Bar Professional Training Course (‘BPTC’), which he completed in July 2012 at a cost of £16,000. He wrote: ‘in April 2012 (after I completed the PGDip but prior to completing the BPTC) I was appointed to the Nursing and Midwifery Council as a Panel Chair. As previously described this is a freelance/self-employed role paid as a contractor on a day rate. I’m keen to offset the cost of the legal training against income. I understand that the basic rule is that you can’t claim for training undertaken prior to starting an activity, but although the activity was low, it was undertaken before I did the training. I undertook the course to do ‘more’ and the strategy has worked. Since completing the PGDip course I have earned just over £30,000 in mediation and professional discipline of which just over £25,000 was earned since completing the BPTC course.’

[161]In his tax return for 2012/2013, the Claimant gave his business name as ‘R Somerville’ and the description of his business as ‘consultancy and professional disciplinary’. In oral evidence he confirmed that he offset expenses of £12,190; he thought it ‘likely’ that that figure included an element of his legal training. He agreed that thereafter he continued to offset substantial expenses, including further legal training and the cost of a website template, against the business which he called ‘consultancy and professional disciplinary’. The Claimant’s explanation for this was that there was only one form that he could complete, if he was not treated as an employee. Each year he described his business in slightly different ways, essentially as an amalgam of his various activities (for example, ‘Consultancy and Professional Disciplinary’, or ‘Prof. Regulatory Panel Chair/Ombudsman’). The Claimant agreed that he paid National Insurance at the lower, self-employed rate. The law to be applied Statutory definitions

[162]S.230 ERA, so far as relevant, provides:(1) In this Act "employee" means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

(2) In this Act "contract of employment" means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

(3) In this Act "worker" (except in the phrases "shop worker" and "betting worker") means an individual who has entered into or works under (or, where the employment has ceased, worked under) - (a) a contract of employment, or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; and any reference to a worker's contract shall be construed accordingly.

[163]Reg 2(1) WTR 1998 adopts the same definition of worker as the ERA.

[164]There are thus three categories of relationship, conveniently summarised in Bates van Winkelhof v Clyde & Co. LLP

[2014] ICR 730

(per Baroness Hale at [24] and [25]): ‘24. First, the natural and ordinary meaning of “employed by” is employed under a contract of service. Our law draws a clear distinction between those who are so employed and those who are self-employed but enter into contracts to perform work or services for others. 25. Second, within the latter class, the law now draws a distinction between two different kinds of self-employed people. One kind are people who carry on a profession or a business undertaking on their own account and enter into contracts with clients or customers to provide work or services for them. The arbitrators in Hashwani v Jivraj (London Court of International Arbitration intervening)

[2011] ICR 1004

were people of that kind. The other kind are selfemployed people who provide their services as part of a profession or business undertaking carried on by someone else. The general medical practitioner in Hospital Medical Group Ltd v Westwood

[2013] ICR 415

, who also provided his services as a hair restoration surgeon to a company offering hair restoration services to the public, was a person of that kind and thus a “worker” within the meaning of section 230(3)(b) of the 1996 Act.’

[165]A worker who meets the definition in s.230(3)(b) ERA is now commonly referred to as a ‘limb (b) worker’ or ‘an employee under the extended definition’. Employee status

[166]The definition of employee in s.230(1) ERA turns on the meaning of the phrase ‘contract of service’ in s.230(2) which, impliedly, is to be contrasted with a ‘contract for services’.

[167]The usual starting-point is the passage in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance

[1968] 2QB 497

at 515, in which MacKenna J. said: ‘A contract of service exists if these three conditions are fulfilled.(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.

(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master.

(iii) The other provisions of the contract are consistent with its being a contract of service. I need say little about (i) and (ii). As to (i). There must be a wage or other remuneration. Otherwise there will be no consideration, and without consideration no contract of any kind. The servant must be obliged to provide his own work and skill. Freedom to do a job either by one's own hands or by another's is inconsistent with a contract of service, though a limited or occasional power of delegation may not be: see Atiyah's Vicarious Liability in the Law of Torts (1967) pp. 59 to 61 and the cases cited by him. As to (ii). Control includes the power of deciding the thing to be done, the way in which it shall be done, the means to be employed in doing it, the time when and the place where it shall be done. All these aspects of control must be considered in deciding whether the right exists in a sufficient degree to make one party the master and the other his servant. The right need not be unrestricted.’ … I can put the point which I am making in other words. An obligation to do work subject to the other party's control is a necessary, though not always a sufficient, condition of a contract of service. If the provisions of the contract as a whole are inconsistent with its being a contract of service, it will be some other kind of contract, and the person doing the work will not be a servant. The judge's task is to classify the contract (a task like that of distinguishing a contract of sale from one of work and labour). He may, in performing it, take into account other matters besides control.’

[168]As for personal performance, the Supreme Court in Pimlico Plumbers v Smith

[2018] ICR 1511

endorsed the principles set out by Sir Terence Etherton MR in his judgment in the same case in the Court of Appeal (

[2017] ICR 657

at [84]: ‘84. In the light of the cases and the language and objects of the relevant legislation, I would summarise as follows the applicable principles as to the requirement for personal performance. Firstly, an unfettered right to substitute another person to do the work or perform the services is inconsistent with an undertaking to do so personally. Secondly, a conditional right to substitute another person may or may not be inconsistent with personal performance depending upon the conditionality. It will depend on the precise contractual arrangements and, in particular, the nature and degree of any fetter on a right of substitution or, using different language, the extent to which the right of substitution is limited or occasional. Thirdly, by way of example, a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance. Fourthly, again by way of example, a right of substitution limited only by the need to show that the substitute is as qualified as the contractor to do the work, whether or not that entails a particular procedure, will, subject to any exceptional facts, be inconsistent with personal performance. Fifthly, again by way of example, a right to substitute only with the consent of another person who has an absolute and unqualified discretion to withhold consent will be consistent with personal performance.’

[169]No contract of employment can exist in the absence of 'mutual obligations subsisting over the entire duration of the relevant period': Clark v Oxfordshire Health Authority

[1998] IRLR 125

at [22]. In Carmichael v National Power plc

[1999] ICR 1226

(at 1230) Lord Irvine cited this passage with approval, in support of the proposition that, if there were no obligation on the employer to provide work, and none on the putative employee to undertake it, there would be 'an absence of that irreducible minimum of mutual obligation necessary to create a contract of service.'

[170]In Quashie v Stringfellow Restaurants Ltd.

[2013] IRLR 99

at [12] Elias LJ held: ‘In order for the contract to remain in force, it is necessary to show that there is at least what has been termed 'an irreducible minimum of obligation', either express or implied, which continues during the breaks in work engagements: see the judgment of Stephenson LJ in Nethermere (St Neots) v Gardiner

[1984] IRLR 240

, 245, approved by Lord Irvine of Lairg in Carmichael v National Power plc

[2000] IRLR 43

, 45. Where this occurs, these contracts are often referred to as 'global' or 'umbrella' contracts because they are overarching contracts punctuated by periods of work. However, whilst the fact that there is no umbrella contract does not preclude the worker being employed under a contract of employment when actually carrying out an engagement, the fact that a worker only works casually and intermittently for an employer may, depending on the facts, justify an inference that when he or she does work it is to provide services as an independent contractor rather than as an employee.

[171]In Cotswold Developments Construction Ltd v Williams

[2006] IRLR 181

, Langstaff J concluded at [47, 48 and 54]:1 'Mutual obligations are necessary for there to be a contract at all. If there is a contract, it is necessary then to determine what type of contract it is. If it is a contract of employment, consequences will follow of the greatest significance – not only in terms of whether the employee is entitled to, and the employer subject to, those rights and duties conferred by statute upon employees and employers alike, but also common law considerations such as whether the employer may be, for instance, vicariously liable for the torts of the employee. The concept may be essential in determining whether there has been actionable discrimination on the ground of sex, race or disability. These matters are determined by the nature of the mutual obligations by reference to which it is to be accepted that there is a contract of some type. 1 An approach subsequently approved by the Court of Appeal: in James v Greenwich LBC

[2008] ICR 554

at [45]; and in Quashie v Stringfellow Restaurants Ltd.

[2013] IRLR 99

at [42]. … It cannot simply be control that determines whether a contract is a contract of employment or not. The contract must also necessarily relate to mutual obligations to work, and to pay for (or provide) it: to what is known in labour economics as the “wage-work bargain”. … Regard must be had to the nature of the obligations mutually entered into to determine whether a contract formed by the exchange of those obligations is one of employment, or should be categorised differently.’

[172]As for the nature of the obligations, in Nethermere (St Neots) Ltd v Taverna

[1984] ICR 612

, Dillon LJ held (at p.634G): ‘For my part I would accept that an arrangement under which there was never an obligation on the outworkers to do work, or on the company to provide work, could not be a contract of service.’ Kerr LJ held (at p.629D): 'The inescapable requirement concerning the alleged employees however … is that they must be subject to an obligation to accept and perform some minimum, or at least reasonable, amount of work for the alleged employer.'

[173]In the recent case of Varnish v British Cycling Federation,

UKEAT/0022/20/LA

, Choudhury P. reviewed the authorities and held at [38]: ‘The relevant obligations as encapsulated in Cotswold involve an obligation upon an individual to undertake some minimum or at least some reasonable amount of work, and some obligation upon the other party to provide or pay for it. Whereas under the Ready Mixed Concrete approach, there is no quantification of the amount of work that is to be provided by the putative employee, and the putative employer’s obligation comprises pay and remuneration, it is clear now that a contract of service may exist where the putative employee agrees to some reasonable minimum amount of work and the putative employer’s obligation may be discharged by merely providing the work to be done.’

[174]A mere expectation that an individual will undertake a certain amount of work is not the same as an obligation to do so. In Hafal Ltd v Lane-Angell,

UKEAT/0107/17

Choudhury P. held at [29] that: ‘The Tribunal's findings indicate that the Claimant was expected to provide dates of availability to the Respondent. The Claimant would then be placed on the rota. There was an expectation that the Claimant would be able to provide work should she be contacted whilst on the rota. However, there is no finding that the Claimant was obliged to provide any or any minimum number of dates of availability, certainly not for the period before 1 May 2015. It is a trite observation that an expectation that the Claimant would provide work is not the same as an obligation to do so. I recognise that there may be cases where, as a result of a commercial imperative or market forces, the practice is that work is usually offered and usually accepted and that such commercial imperatives or forces may crystallise over time into legal obligations. That was the case in Haggerty. However, in that case, there were no express terms negating such obligations. I consider that to be a significant distinguishing feature. On the facts, this case is closer to the situation in Stevedoring and Carmichael than that in Haggerty.’

[175]If there is sufficient mutuality of obligation that the contract might be one of employment/service, the next question which falls to be determined is control. Although not the sole means of identifying a contract of employment, control remains an essential element of the test. The question is not whether the employer controls the way the putative employee does the work, rather whether the employer can, under the terms of the contract, direct him/her in what s/he did (Wright v Aegis Defence Services (BVI) Ltd,

UKEAT/0173/17/DM

at [35]). That is distinct from showing that the employer controls the way that the employee does the work. Even an absence of day to day control may not be relevant, if the employer retains the ultimate contractual power to direct what work should be done (White v Troutbeck SA

[2013] IRLR 949

, CA).

[176]As for the third element of the test in Ready-Mixed Concrete, there is no definitive list of the features of any agreement which point towards, or away from, its being a contract of employment. In Hall (Inspector of Taxes) v Lorimer

[1994] ICR 218

, the Court of Appeal upheld Mummery J, who in the High Court (

[1992] ICR 739

) held that it was necessary to consider many different aspects of the person's work activity, and that this was not to be done by way of a mechanical exercise of running through items on a check list to see whether they were present in, or absent from, a given situation. Not all details are of equal weight or importance in any given situation. Worker status

[177]As to the requirement for personal performance, the principles referred to in the summary of Sir Terence Etherton MR in Pimlico Plumbers v Smith (above at para 168) apply equally to worker status.

[178]The individual will not be a limb (b) worker if the status of the party for whom s/he works is ‘that of a client or customer of any profession or business undertaking carried on by the individual’. In Bates van Winkelhof, at [34] onwards, Baroness Hale summarised a number of the authorities which have considered that provision: ‘34. In Cotswold Developments Construction Ltd v Williams

[2006] IRLR 181

, para 53 Langstaff J suggested: “a focus on whether the purported worker actively markets his services as an independent person to the world in general (a person who will thus have a client or customer) on the one hand, or whether he is recruited by the principal to work for that principal as an integral part of the principal's operations, will in most cases demonstrate on which side of the line a given person falls.”35. In James v Redcats (Brands) Ltd

[2007] ICR 1006

, para 50 Elias J agreed that this would “often assist in providing the answer” but the difficult cases were those where the putative worker did not market her services at all. He also accepted, at para 48: “in a general sense the degree of dependence is in large part what one is seeking to identify—if employees are integrated into the business, workers may be described as semi-detached and those conducting a business undertaking as detached—but that must be assessed by a careful analysis of the contract itself. The fact that the individual may be in a subordinate position, both economically and substantively, is of itself of little assistance in defining the relevant boundary because a small business operation may be as economically dependent on the other contracting party, as is the self-employed worker, particularly if it is a key or the only customer.”

36. After looking at how the distinction had been introduced into the sex discrimination legislation, which contained a similarly wide definition of worker but without the reference to clients and customers, by reference to a “dominant purpose” test in Mirror Group Newspapers Ltd v Gunning

[1986] ICR 145

, he concluded, at para 59: “the dominant purpose test is really an attempt to identify the essential nature of the contract. Is it in essence to be located in the field of dependent work relationships, or is it in essence a contract between two independent business undertakings? … Its purpose is to distinguish between the concept of worker and the independent contractor who is in business in his own account, even if only in a small way.”

37. The issue came before the Court of Appeal in Hospital Medical Group Ltd v Westwood

[2013] ICR 415

, a case which was understandably not referred to in the Court of Appeal in this case; it was argued shortly before the hearing in this case, but judgment was delivered a few days afterwards. Hospital Medical Group Ltd (“HMG”) argued that Dr Westwood was in business on his own account as a doctor, in which he had three customers: the NHS for his services as a general practitioner, the Albany Clinic for whom he did transgender work, and HMG for whom he performed hair restoration surgery. The Court of Appeal considered that these were three separate businesses, quite unrelated to one another, and that he was a class (b) worker in relation to HMG.

38. Maurice Kay LJ pointed out, at para 18, that neither the Cotswold “integration” test nor the Redcats “dominant purpose” test purported to lay down a test of general application. In his view they were wise “to eschew a more prescriptive approach which would gloss the words of the statute”. Judge Peter Clark in the appeal tribunal had taken the view that Dr Westwood was a limb (b) worker because he had agreed to provide his services as a hair restoration surgeon exclusively to HMG, he did not offer that service to the world in general, and he was recruited by HMG to work as an integral part of its operations. That was the right approach. The fact that Dr Westwood was in business on his own account was not conclusive because the definition also required that the other party to the contract was not his client or customer and HMG was neither. Maurice Kay LJ concluded, at para 19, by declining the suggestion that the court might give some guidance as to a more uniform approach: “I do not consider that there is a single key with which to unlock the words of the statute in every case. On the other hand, I agree with Langstaff J that his ‘integration’ test will often be appropriate as it is here.” For what it is worth, the Supreme Court refused permission to appeal in that case:

[2013] ICR 415

, 427. 39. I agree with Maurice Kay LJ that there is not “a single key to unlock the words of the statute in every case”. There can be no substitute for applying the words of the statute to the facts of the individual case. There will be cases where that is not easy to do. But in my view they are not solved by adding some mystery ingredient of “subordination” to the concept of employee and worker. The experienced employment judges who have considered this problem have all recognised that there is no magic test other than the words of the statute themselves. As Elias J recognised in the Redcats case

[2007] ICR 1006

, a small business may be genuinely an independent business but be completely dependent on and subordinate to the demands of a key customer (the position of those small factories making goods exclusively for the “St Michael” brand in the past comes to mind). Equally, as Maurice Kay LJ recognised in Westwood's case

[2013] ICR 415

, one may be a professional person with a high degree of autonomy as to how the work is performed and more than one string to one's bow, and still be so closely integrated into the other party's operation as to fall within the definition. As the case of the controlling shareholder in a company who is also employed as chief executive shows, one can effectively be one's own boss and still be a “worker”. While subordination may sometimes be an aid to distinguishing workers from other self-employed people, it is not a freestanding and universal characteristic of being a worker.’

[179]The relevance of mutuality of obligation to worker status was considered by the Court of Appeal in Windle and another v Secretary of State for Justice

[2016] ICR 721

(per Underhill LJ at paras 23–24), by reference to the guidance given in Quashie, cited above: ‘23. […] I accept of course that the ultimate question must be the nature of the relationship during the period that the work is being done. But it does not follow that the absence of mutuality of obligation outside that period may not influence, or shed light on, the character of the relationship within it. It seems to me a matter of common sense and common experience that the fact that a person supplying services is only doing so on an assignment-by-assignment basis may tend to indicate a degree of independence, or lack of subordination, in the relationship while at work which is incompatible with employee status even in the extended sense. Of course it will not always do so, nor did the employment tribunal so suggest. Its relevance will depend on the particular facts of the case; but to exclude consideration of it in limine runs counter to the repeated message of the authorities that it is necessary to consider all the circumstances.’ The true agreement

[180]In Consistent Group Ltd v Kalwak

[2007] IRLR 560

, cited with approval by Lord Clarke JSC in Autoclenz v Belcher

[2011] ICR 1157

in the Supreme Court, Elias J. said this: ‘57. The concern to which tribunals must be alive is that armies of lawyers will simply place substitution clauses, or clauses denying any obligation to accept or provide work, in employment contracts, as a matter of form, even where such terms do not begin to reflect the real relationship. Peter Gibson LJ was alive to the problem. He said this (p 697 g ) ‘Of course, it is important that the industrial tribunal should be alert in this area of the law to look at the reality of any obligations. If the obligation is a sham it will want to say so.’58. In other words, if the reality of the situation is that no one seriously expects that a worker will seek to provide a substitute, or refuse the work offered, the fact that the contract expressly provides for these unrealistic possibilities will not alter the true nature of the relationship. But if these clauses genuinely reflect what might realistically be expected to occur, the fact that the rights conferred have not in fact been exercised will not render the right meaningless.

59. … Tribunals should take a sensible and robust view of these matters in order to prevent form undermining substance …’

[181]In Uber BV v Aslam

[2019] ICR 845

, the majority of the Court of Appeal held (at para 66): ‘The effect of Autoclenz Ltd v Belcher

[2011] ICR 1157

in our view is that, in determining for the purposes of section 230 of the ERA 1996 what is the true nature of the relationship between the employer and the individual who alleges he is a worker or an employee, the court may disregard the terms of any documents generated by the employer which do not reflect the reality of what is occurring on the ground. and at para 73: […] ‘The parties’ actual agreement must be determined by examining all the circumstances, of which the written agreement is only a part. This is particularly so where the issue is the insertion of clauses which are subsequently relied on by the inserting party to avoid statutory protection which would otherwise apply. In deciding whether someone comes within either limb of section 230(3) of the ERA 1996 , the fact that he or she signed a document will be relevant evidence, but it is not conclusive where the terms are standard and nonnegotiable and where the parties are in an unequal bargaining position. Tribunals should take a “realistic and worldly-wise”, “sensible and robust” approach to the determination of what the true position is.’ Judicial/quasi-judicial independence and status

[182]Although the Claimant is not, in relation to his work for the NMC, a judicial office-holder or an arbitrator, I was referred to a number of authorities in those areas. They are relevant, insofar as they consider the issue of the requirement for independent decision-making, which is a common feature of judges, arbitrators and Panel Members.

[183]In Ministry of Justice v O’Brien

[2013] ICR 499

, the Supreme Court held that the claimant, a part-time recorder, was a worker for the purposes of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, and as such was entitled to pension rights on a pro rata basis. The Court held as follows (per Lord Hope and Baroness Hale at [34]): ‘The argument for the Ministry of Justice is that there is no obligation to provide Mr O'Brien with a pension under EU law as he was a judicial office holder, not a worker. As Mr David Staff of the then Department for Constitutional Affairs explained in a statement that was shown to the employment tribunal, judicial office holders were seen as being in a distinct category with an entirely separate status. Fundamental to the concept of judicial independence was the fact that judicial office holders exercise their function wholly independently of influence or direction by any minister, government department or agency. The Court of Justice has, however, made it clear that the principle that judges are independent in the exercise of the function of judging as such is not called into question by extending to part-time judges the scope of the principle of equal treatment to protect them against discrimination as compared with full-time workers:

[2012] ICR 955

, paras 47–49. In these paragraphs the court was, in effect, endorsing the observations of Advocate General Kokott, where she said in paras 50–51 of her opinion: “50. In this connection, I would also point out that it is difficult to determine how the rights granted by the framework agreement in general, and an entitlement to a retirement pension in particular, can jeopardise the essence of the independence of a judge; on the contrary, an entitlement to a retirement pension strengthens the economic independence of judges, and thus ultimately also the essence of their independence. “51. Independence in terms of the essence of an activity is not therefore an appropriate criterion for justifying the exclusion of a professional category from the scope of the framework agreement.”

[184]In Gilham v Ministry of Justice

[2019] ICR 1655

, the Supreme Court held that a district judge was not a ‘worker’ within the meaning of s.230(3) ERA for the purpose of the statutory protection given to whistle-blowers. In that case it was not in dispute that the claimant undertook personally to perform work or services, and that the recipient of those services was not a client or customer of the judge. She was not a worker because she did not work under a contract with the Respondent; she was an office-holder. The Supreme Court held at [20] (per Baroness Hale) that: ‘Finally, and related to that, there is the constitutional context. Fundamental to the constitution of the United Kingdom is the separation of powers: the judiciary is a branch of government separate from and independent of both Parliament and the executive. While by itself this would not preclude the formation of a contract between a Minister of the Crown and a member of the judiciary, it is a factor which tells against the contention that either of them intended to enter into a contractual relationship.’

[185]In Hashwani v Jivraj

[2011] ICR 1004

, the Supreme Court considered the status of arbitrators, holding (per Lord Clarke at [40-41]): ‘If the approach in Allonby is applied to a contract between the parties to an arbitration and the arbitrator (or arbitrators), it is in my opinion plain that the arbitrators' role is not one of employment under a contract personally to do work. Although an arbitrator may be providing services for the purposes of VAT and he of course receives fees for his work, and although he renders personal services which he cannot delegate, he does not perform those services or earn his fees for and under the direction of the parties as contemplated in para 67 of Allonby. He is rather in the category of an independent provider of services who is not in a relationship of subordination with the parties who receive his services, as described in para 68. The arbitrator is in critical respects independent of the parties. His functions and duties require him to rise above the partisan interests of the parties and not to act in, or so as to further, the particular interests of either party. As the International Chamber of Commerce (“the ICC”) puts it, he must determine how to resolve their competing interests. He is in no sense in a position of subordination to the parties; rather the contrary. He is in effect a “quasi-judicial adjudicator”: K/S Norjarl A/S v Hyundai Heavy Industries Co Ltd

[1992] QB 863

, 885.' Conclusions: was the Claimant an employee of the NMC?

[186]It was agreed between the parties that the Claimant’s claim against the NMC was solely a claim in respect of holiday pay. In order to pursue a claim of that sort, he need only be a limb (b) worker. However, submissions were made by both parties on the issue of employment status, and accordingly I have considered it. The existence of a contract

[187]The Claimant contended that there was an overarching (or umbrella) contract, subsisting between assignments; alternatively, that there was a series of individual contracts in relation to the hearings on which he agreed to sit.

[188]The NMC contended that there was no contract of employment at all between it and the Claimant, whether characterised as an overarching contract, or a series of individual contracts.

[189]I accept the Claimant’s submission that there was both an overarching contract between him and the NMC, and a series of individual contracts.

[190]In relation to the former, the NMC offered to appoint the Claimant to the FTP panel as a Chair for a period of four years; the Claimant accepted in writing. The terms of that contract are to be found in the letters of appointment, the PMSAs and its Schedules and Appendices. Those terms undoubtedly included some provisions which amounted to legally enforceable rights and obligations. These are set out in my findings above (at paras 98 and 99).

[191]In relation to the latter, each time the NMC offered the individual, and the Claimant accepted, he agreed to sit on the hearing, for which the NMC agreed to pay him a fee.

[192]The question then is whether these were contracts of employment. Personal performance

[193]In her submissions, Ms Darwin accepted that the Claimant ‘did not have an unfettered right to substitute another person. However, he did have a conditional right of substitution or delegation’. She relied on the passage in the judgment of Etherton MR in Pimlico Plumbers, in particular his fourth example of ‘rights of substitution limited only by the need to show that the substitute is as qualified as the contractor to do the work’. She submitted that the Claimant fell into this category, because he could withdraw from a booking for any reason, even at short notice, and the Registrar had the power to appoint a substitute panel member. She characterised this as the Claimant’s ‘ability to delegate his work’.

[194]In dealing with this submission, the Claimant referred me to Clause 7 of the PMSA, which provides that ‘the Panel Member shall provide the services’, and reminded me that Mr Johnson said in his witness statement that it was not permissible for Panel Members to provide a substitute, the onus of identifying a replacement falling on the NMC itself. The Claimant submitted that any right to substitute another Member was the NMC’s right, not his. I accept that submission: the Claimant could not send someone else to perform the work on his behalf, retain the income from the NMC and pay the substitute out of it. There was not even a mechanism by which he could nominate a replacement, let alone substitute him/her; that process was carried out exclusively by the NMC’s Panel Support Team.

[195]I conclude that the Claimant has no right of substitution of any sort, fettered or unfettered; under the contract, he undertook to perform work personally for the NMC. Overarching/umbrella contract: sufficient mutuality of obligation to give rise to a contract of employment

[196]The Claimant’s evidence was that he was: ‘under a contractual duty to make myself available for a minimum number of days. I was regularly required to identify my availability’.

[197]As for the obligation on the Respondent, he maintained that there was: ‘never a time when there was an absence of all work such that no one was given any work’.

[198]The starting-point must be the contractual terms (above at para 96). They unambiguously provide that the NMC was not obliged to ask the Claimant to provide services, and the Claimant was not obliged to provide them, if asked to do so. I went on to consider whether those terms were consistent with the evidence as to how the arrangements worked in practice.

[199]Mr Johnson accepted in evidence that there was an expectation that the Claimant would make himself available for work. But, as Choudhury P. held in Hafal, an expectation is not the same as a legal obligation. Was this a case where ‘expectations’ crystallised into legal obligations? The Claimant, in his closing submissions, compared the offering by Members of dates of availability to the logging-on to the system by private hire drivers in Addison Lee Ltd v Lange

[2019] ICR 637

. The Tribunal in that case found that they were then obliged to accept bookings allocated to them, despite a clause in the contract which expressly stated that there was no obligation on the driver to provide services. If the reason the drivers provided for not accepting the booking was considered unacceptable, a sanction might follow, including being removed from the system.

[200]The Claimant’s position was quite different: he controlled how many dates he offered to the NMC; if the NMC then offered assignments within those dates, he was free to refuse them. Not only was there no contractual obligation on him to offer dates, there was no obligation on him to honour them once he had accepted; he was free to withdraw, and the NMC was obliged to arrange a replacement.

[201]The contract did not provide for any sanction if work was not accepted, or was returned; nor was there evidence before me that the Claimant had been subjected to sanctions when he did not offer dates, or withdrew from work which he had previously accepted. He did not identify how many days the purported contractual duty required of him. If it was the 30-day ‘expectation’ referred to in the original advertisement, he fell below that in 2018 (when he sat for only 17 days), without any sanction being applied to him. As for his rate of withdrawal, I note that in 2015 the Claimant’s rate of withdrawal from cases (16.5%) was significantly higher than average, yet no sanction was imposed on him; on the contrary, he was reappointed in 2016.

[202]I also considered the significance of the benchmark process, I accept Ms Darwin’s submission that this was a ‘light touch’ process aimed at assisting with learning and development, but also monitoring the quality of Members’ work. For part of the material time it included metrics in relation to sitting days. That was removed in 2018; the NMC acknowledged that there was a tension between its use and the fact that there was no obligation under the PMSAs for panel members to accept a minimum number of events each year.

[203]The fact that the NMC monitored sitting and withdrawal dates did not, in my judgment, give rise to a legal obligation on the Claimant to accept work. Even an independent contractor may find his/her availability and reliability being monitored by his/her client, without the relationship evolving into one of employment. Although such monitoring may give rise to an incentive to offer dates, and accept assignments, it does not create a legal obligation to do so. The fact that the NMC engaged in discussions, and sought assurances from Members who offered little or no availability, did not, in my judgment, suggest the existence of a contractual obligation to do so: mere assurances lack contractual force. In any event, there was no suggestion that the Claimant had ever been approached in this way.

[204]There was a reference to a single Member whose contract had been terminated before the end of his appointment; in his statement Mr Johnson said that this was ‘due to providing insufficient sitting days’. I heard nothing further about the circumstances of that termination; the termination may itself have been in breach of contract. In any event, my focus must be on the relationship between the Claimant and the NMC, not the relationship between another Member and the NMC, unless I am satisfied that this single instance, in itself, demonstrated that the relevant contractual terms did not apply in practice; I am not.

[205]In my judgment, the fact that the NMC has not renewed eight appointments since 2013 takes the matter no further forward. It is a remarkably low number. I would have been more surprised if all appointments had been renewed, as it might suggest a worrying lack of scrutiny and quality-control.

[206]As for any contractual obligation on the NMC to offer work, it was the Claimant’s own evidence that, given the number of registrants and the volume of work passing through the NMC, Members could expect a certain amount of work each year. The fact that there was a likelihood that the Respondent would offer work each year did not create a contractual obligation on it to offer a minimum amount of work to the Claimant. As Ms Darwin put it in her oral closing submissions, ‘it is wrong to conflate flow of work with mutuality of obligation’. Nor did the fact that the NMC sought to distribute work equitably give rise to a contractual obligation on it to offer the Claimant a minimum amount of work; that was something it did voluntarily.

[207]From the evidence before me, I do not conclude that, in practice, the Claimant considered himself obligated to offer dates. On the contrary, it is plain from the correspondence I have quoted from above (at para 123 onwards), that he felt able to warn Mr Johnson that he might reduce his commitment to the NMC and offer his services elsewhere; in his reply, Mr Johnson acknowledged his right to do so. As for any purported obligation on the NMC, in the same correspondence the Claimant expressed his ‘disappointment’ not to have been offered more work on that occasion, but there was no suggestion by him that this amounted to a breach of his rights under the contract. On the contrary, he expressly acknowledged the NMC’s right to ‘allocate work on any basis it wishes to’.

[208]I reject the Claimant’s contention that the express exclusion of obligations to offer and accept work did not reflect the true agreement, or were overridden by the parties’ conduct, or the practical realities of the situation. Nor was I persuaded, on the evidence before me, that mere expectations on either side had crystallised into legal obligations. In my view, the most that can be said is that the NMC encouraged Members to offer sitting days, and did so more actively at some times than at others.

[209]Accordingly, I conclude that the overarching contract was not a contract of employment. Individual assignments: contracts of employment?

[210]Once an agreement that the Claimant would undertake a particular hearing had been concluded, if the Claimant did the hearing, the NMC was obliged to pay him; even if the hearing was cancelled, there was an obligation on the Respondent to pay him: 100% of the fee (pre-2017); or 50% of the fee (post2017). However, as I have already found, there was no equivalent obligation on the Claimant: he was free to withdraw from the hearing, even after the agreement had been concluded.

[211]The Code of Conduct speaks of an ‘expectation’ that this would be ‘in exceptional circumstances’; as I have already observed, an expectation is not an obligation. The only obligation on him was to notify the NMC ‘at the earliest opportunity’, a provision which did not exclude a late withdrawal.

[212]I find support for that conclusion in the fact that, in practice, no explanation was required for withdrawing from a hearing: see for, example, the Claimant’s withdrawal email at para 120. I heard no evidence that any sanction was applied for that, or any other, withdrawal; the Claimant was simply not paid. There was no obligation on him to find a replacement, that was the NMC’s responsibility; his right to withdraw was not even contingent on the NMC’s ability to find a replacement. Nothing in the contractual documentation, or in the parties’ own conduct, was consistent with a decision by the Claimant to withdraw from an assignment amounting to a breach of contract.

[213]Clark v Oxfordshire Health Authority is authority for the proposition that an employment contract cannot exist in the absence of 'mutual obligations subsisting over the entire duration of the relevant period'. In respect of each individual assignment, that period began when the Claimant accepted the offer of the assignment. The NMC was not free to cancel without incurring all or part of the fee; to that extent there was some obligation on it. But because the Claimant could withdraw, without sanction, after the conclusion of the agreement and before the hearing, I conclude that there was insufficient mutuality of obligation to give rise to an employment relationship by reference to the individual assignment contracts.

[214]In my judgment, the position is analogous to that identified in the UTT case of Commissioner for her Majesty’s Revenue and Customs v PGMOL

[2020] STC 1077

, concerning part-time match referees. In considering whether each individual engagement amounted to a contract of employment, Zacaroli J. held as follows at [111-114]: ‘We accept that a referee's right not to attend the match in the case of illness, injury or (the other example given) inability to make it through traffic in time is no different from the implied qualification in many employment contracts that the employee is not in breach of contract if he or she is unable to turn up to work. In this case, however, it is common ground that referees could also withdraw from an engagement if their other work commitments precluded it. That is a qualitatively different right to that of a typical employee. Indeed, as we state above, we consider that the FTT found that the only contractual fetter on the referee's right to withdraw from an appointment was his obligation to notify PGMOL. … in our judgment, the FTT was entitled to find that the right of the referee, who accepted an engagement to officiate at a single match, to withdraw from that single engagement, was inconsistent with the obligations of an employee.’

[215]Although not binding on me, I find the analysis in that passage persuasive.

[216]Accordingly, the Claimant was not an employee of the NMC.

[217]Because I have reached that conclusion, there is no need for me to go on to consider the other elements of the test for employment status. Conclusion: worker status

[218]To qualify as a worker, three conditions must be satisfied: 218.1. there must be a contract between the Claimant and NMC; 218.2. the contract must be one in which he undertakes to perform work personally for NMC; 218.3. and the NMC must not be a client or customer of a profession or business carried on by the Claimant.

[219]I have already found that there was an overarching contract between the Claimant and the NMC, as well as individual contracts when work was assigned, under which the Claimant agreed to provide his services personally, although I have concluded that neither were contracts of employment. Was the NMC a client or customer of a profession or business carried on by the Claimant?

[220]In determining whether the relationship between the Claimant and the NMC was one of a business undertaking/profession and customer/client, I kept in mind that none of these expressions are terms of art.2 Although it might seem counterintuitive that a regulatory body could be described as the client/customer of one of its Members, the term ‘client’ may apply to any individual or organisation, which purchases services from another individual or organisation. It might also be unorthodox to assign the label of ‘profession’ to the occupation of sitting as a member of a regulatory panel. Although it does not share some characteristics of more traditional professions (institutionalised training and a licensing system, for example), it undoubtedly shares others (work of an intellectually demanding nature and the requirement for independence of judgment).

[221]Accordingly, I did not exclude the possibility that, on these facts, the NMC’s status might come within the client/customer exclusion.

[222]I turned first to the guidance of Langstaff J. in Cotswold Developments, who suggested that the following considerations may demonstrate on which side of the independent contractor/worker line a self-employed individual falls: did the Claimant actively market his services as an independent person to the world in general, or was he recruited by the principal to work for that principal as an integral part of its operations? As Elias J. held in James v Redcats, it is the degree of integration which is significant.

[223]Portfolio careers are not uncommon; few, I imagine, are so wide-ranging as the Claimant’s. However, I regarded his work outside the area of acting as a regulatory panel member/chair as a neutral indicator in this exercise: the fact that he also practices as a barrister, mediator and arbitrator does not assist me in identifying the character of his relationship with the NMC. If the Claimant is ‘in business on his own account’ when he is working for the NMC, in my opinion it is a different business from the one by which he does his other work, just as in 2 See the observations of HHJ Serota QC in Smith and Hewitson, EAT, unreported, 17 September 2001, cited in Westwood at [12]. the Westwood case at [11], the claimant had a number of different ‘businesses or outlets for his professional skills’, which were unrelated to each other.

[224]On the other hand, there is a strong similarity between the work that the Claimant did for the NMC and the work he did as a Panel Member for other regulators, such as MPTS. There was no contractual requirement that he do this type of work exclusively for the NMC; that was reflected in the way the relationship worked in practice. It is apparent from the email exchange I have quoted above (at para 128) that the Claimant had no qualms about seeking Mr Johnson’s advice as to how to secure similar work in another sector; Mr Johnson was similarly untroubled by the Claimant’s warning (quoted above at para 126) that he might start favouring other regulators over the NMC.

[225]The only restriction on the Claimant was the prohibition on offering his services as a barrister to nurses or to the Royal College of Nursing. However, as I have already indicated, that is a different kind of work from the work the Claimant did for the NMC; furthermore, the reason for the prohibition is so plainly based in ethical considerations that it says nothing about the question of status.

[226]However, to characterise the Claimant’s seeking work with other regulators as ‘marketing his services’ would be wrong. The Claimant did not market his services to the NMC; he was recruited by it via a structured exercise. Although it is possible to think of examples of independent contractors submitting to structured processes to secure work (architectural competitions come to mind), for a genuine independent contractor, that is not the sole route to obtaining work; s/he may also advertise and approach potential clients. Work as a Panel Member cannot be solicited by direct approach, nor generated through advertising.

[227]I then considered the third element, which Langstaff J. suggested might be a significant identifier: given that the Claimant was recruited, was he recruited to work ‘as an integral part of [the NMC’s] operations’?

[228]Some matters relied on by the Claimant as indicators of integration into the NMC appear to me to be fanciful. I do not accept that the wearing of a suit amounted to a ‘uniform’. A uniform is specific to the organisation which requires it to be worn; nothing about a suit is specific to the NMC, it is a conventional form of dress across a wide range of occupations; the Claimant accepted that it would not have occurred to him to wear anything else. Nor do I regard the fact that he carried a security pass, issued to him by the NMC, as an indicator of integration; it was a practical measure to allow him to access the building, such as might also be provided to independent contractors (maintenance engineers or cleaners, for example). Both are, in my opinion, neutral indicators.

[229]Some factors might be regarded as pointing away from integration into the NMC: the fact that the Claimant had no contact with HR, did not have an NMC email address, and was not invited to NMC social events. Furthermore, neither the NMC, nor the Claimant himself, held him out as its representative or agent. Indeed, the email quoted above (at para 133) shows him being careful to clarify that he was not ‘from the NMC’. However, in my opinion, these factors are more reflective of the scrupulousness with which both the Claimant and the NMC maintained a degree of public distance from each other, in order to avoid any misleading impression that the Claimant was not free to make independent judgements. I return to that issue below.

[230]Turning now to the factors which point towards integration, the first of these is the centrality of the work itself: without the work of the Claimant and his fellow Members, the NMC would not be able to discharge one of its principal functions: to ensure the maintenance of the standards of conduct and performance for nurses and midwives.

[231]There is then the fact that that the NMC provides mandatory training for Members. With an independent contractor, the onus would usually be on him/her to maintain necessary knowledge and skills. Although I accept Mr Johnson’s evidence that the training was of a kind which the Claimant might not be able to source himself, there might be other ways of making that information available, other than through mandatory attendance at a training day. As for the requirement to do duty work if a hearing went short, I consider that an independent contractor would be unlikely to accept additional tasks, once the assigned work had been completed. Both these factors suggest to me a degree of integration.

[232]Turning to the question of the procedures which applied to the Claimant, it will be apparent from my earlier conclusions that I do not consider that the procedures designed to monitor and assess Members against broad criteria to be indicative of integration; employers may assess the performance of independent contractors for quality control purposes, including for the purposes of deciding whether to offer further work, without their becoming integrated into the operation.

[233]However, the procedures for dealing with individual performance/conduct concerns and complaints, which I have set out above (at paras 110-111), go beyond mere monitoring or assessment, or the provision of informal and supportive feedback. They provide for a mechanism whereby the NMC can formally raise, investigate and determine performance and conduct concerns with individual Members, with a view to taking action, including requiring them to undergo specific training and, in appropriate circumstances, leading to the termination of their appointment. The fact that this procedure is separate from the procedures applied to employees does not make it any less a procedure of the NMC’s. In my opinion, it indicates a degree of subordination, to which an independent contractor would be unlikely to submit.

[234]I next considered the question of remuneration. I do not consider the fact that, for part of the time at least, the Claimant derived a high proportion of his income from the NMC as an indicator of dependence or integration; I regard it as neutral. As Elias J. recognised in Redcats, an independent contractor may be completely dependent on a key customer, yet remain genuinely an independent business. I consider it likely that the Claimant chose to do a high proportion of his work for the NMC during a particular period, because it was convenient work for him to do at a time when he was studying to be a barrister. When he began to practise, he reduced his commitment to the NMC almost immediately.

[235]The mechanism by which the Claimant was paid (by way of fees for which he invoiced) might be regarded as a marker of independent contractor status. However, the setting of those fees is a different matter: for an independent contractor, the starting-point would usually be a scale of fees which s/he proposes, which is then the subject of negotiation. Here, by contrast, the Claimant had no control over, or input into, the level of remuneration: fees were fixed and non-negotiable, and the NMC had the power, which it exercised, unilaterally to reduce/vary those fees (see above at para 135). I consider that the absence of negotiation, and the NMC’s power of unilateral variation, carry greater weight than the mere mechanism of payment, and point towards a degree of integration/dependence.

[236]Turning to the issue of tax, the Claimant was responsible for accounting to HMRC for any income tax and national insurance contributions due on the fees paid to him by the NMC. I accept his submission that, because NMC did not pay him through PAYE, he had no choice but to fill in a self-assessment form. Both workers and independent contractors would complete such a form and, to that extent, it is a neutral factor. The descriptions of the ‘business’ which the Claimant gave appear in his tax returns appear to me to be little more than short-hand for his various activities, which I have already found cut across a range of quite different professional activities.

[237]I turn now to the issue on which Ms Darwin placed considerable reliance: can the fact that the NMC is always one of the parties in the proceedings before the Claimant be reconciled with his being a worker of the NMC? Is it not essential that his independence as a quasi-judicial decision-maker be reflected by a commensurate independence of status?

[238]The Gilham case may be distinguished: the district judge in that case was held not to be a worker because she did not work under a contract; that is not an issue here. O’Brien leaves open the possibility that the requirement for judicial (or quasi-judicial) independence is not incompatible with worker status. On the other hand, in Hashwani the Supreme Court held (at [41-42]) that the functions of an arbitrator required him to rise above the partisan interests of the parties and that he was ‘in no sense in a position of subordination to the parties; rather the contrary.’ In my opinion, that case may also be distinguished. The Court went on to find that ‘once an arbitrator has been appointed … the parties effectively have no control over him … [he] may only be removed in exceptional circumstances’. The same cannot be said of the Claimant, at least to the same extent: see my findings above in relation to the NMC’s procedures for dealing with concerns about individual Members’ performance/conduct, which included powers of suspension and termination.

[239]In the present case, I have concluded that the various structural precautions which are in place themselves provide the necessary guarantee of independence. Firstly, there is the statutory prohibition on the NMC engaging Members/Chairs as employees: employees have rights and obligations which workers do not, and which might well give rise to conflicts of interest (or the appearance thereof). Secondly, there are the ethical ‘walls’ provided for within the structure: the recruitment process is conducted by an external agency; recommendations for appointment are made by an independent panel; and there is a prohibition on members of the NMC Council sitting on FTP panels. Finally, independence is required and guaranteed by the provisions of the contract itself, including the obligation to act impartially and without bias (see above at paras 103 and 104). I have concluded that, taken together, these provisions create the necessary degree of detachment, which is consistent with quasi-judicial independence, but is not, in itself, inconsistent with worker status.

[240]For the avoidance of doubt, I reject the Claimant’s contention that the NMC controlled his decision-making process: he was an independent decisionmaker, who was free to reach such conclusions as he considered justified by the evidence before him. As a Panel Chair he controlled the conduct of the hearings assigned to him.

[241]I do not consider that the fact that the Claimant did not receive sick pay or holiday pay, and was not entitled to participate in the NMC’s pension scheme, health care or other benefits to be determinative of the question of status; they are merely reflective of the label of ‘independent contractor’ which the parties themselves attached to the relationship. Nor do I consider that label determinative of the question of the Claimant’s status.

[242]I also considered the relevance of mutuality of obligation. Although I have concluded that there was insufficient mutuality of obligation to give rise to a contract of employment, there were legal obligations on each side sufficient to create the necessary contractual relationship in the context of worker status. In the circumstances I have described, I do not consider that the absence of mutual obligations to offer/accept a minimum amount of work to be incompatible with worker status.

[243]I have already concluded that the Claimant entered into a contract with the NMC, whereby he undertook personally to perform work/services for it. Standing back and looking at the overall picture, when I have regard to the method of recruitment, the factors I have identified above which, cumulatively, suggest a significant degree integration into the operation, together with the element of subordination in the conduct/performance procedure and the absence of any negotiation in respect of pay, I am satisfied that the NMC’s status was not by virtue of that contract that of the Claimant’s client or customer. I have concluded that he was sufficiently integrated into the NMC’s operations, such that he was, to borrow the language of Elias J in James v Redcats, ‘semi-detached’ rather than ‘detached’, as an independent contract would be.

[244]Accordingly, I conclude that the Claimant was a worker of the NMC within the meaning of s.230(3)(b) ERA and Reg 2(1)(b) WTR. The Claimant’s credibility

[245]Ms Darwin made much of the dispute about disclosure, which I dealt with at the beginning of the judgment, and suggested that it undermined the Claimant’s credibility. Although I concluded that the Claimant ought to have disclosed the material, I did not consider that he was being wilfully obstructive in not doing so, and the omission did not materially affect my view of his credibility. I found him to be a thoughtful and conscientious individual, who argued his case with tenacity, while avoiding personal criticisms of the Respondents’ witnesses. In any event, this was not a case which turned to any great extent on credibility: there was little in dispute between the parties as to the facts and events in question; it was in the interpretation of those facts that they differed fundamentally.

[246]I was grateful to the Claimant, and to both Counsel, who provided helpful submissions, for their constructive approach to the management of the hearing. Next steps

[247]The case against the NMC will be listed for a short preliminary hearing for case management to clarify the issues, list the final hearing, and give directions. The parties are asked to provide their dates to avoid for such a hearing within seven days of the date on which this judgment is sent out.

[1]The Claimant’s claims arise out of his work as Chair of both fitness to practice and registration appeals hearings.

[2]The Employment Tribunal’s judgment that the Claimant was a worker of the Respondent related to all his work for it, including his work as a Chair on registration appeals. It was not restricted to his work as a Chair on fitness to practise hearings.

[1]The issue I had to determine at this hearing was raised by the Respondent in a proposed, draft agreed list of issues sent to the Tribunal on 12 April 2022. At paragraph 1, the following issue was identified: ‘1. What “work” carried out by the Claimant for the Respondent is relevant to the Claimant’s pleaded holiday pay claims?(1) The claimant’s position is that he was a member of the Practice Committee and a Registration Appeal Member, and that the ET’s judgement concerned his status in respect of both roles.

(2) The Respondent’s position is that the Claimant’s pleaded claims are based on his appointment as a member of the Practice Committee, which ended in March 2020, and that the ET in its judgment only considered his status as a member of the Practice Committee. The Respondent does not accept that the Claimant was a worker when he provided other services to the Respondent, or that any claims in respect of that engagement are before the Employment Tribunal.’

[2]In a record of a preliminary hearing, which took place on 20 April 2021, I decided that this dispute should be dealt with by me, since I was best placed to determine it, having first-hand knowledge of what happened at the hearing on worker status in 2019/2020.

[3]The significance of this issue, according to Ms Darwin (Counsel for the Respondent) is that the Respondent now wishes to advance a case that, for the purposes of the Claimant’s claim, time runs from the last day that the Claimant sat as an FTP Chair (thereby excluding any subsequent work as a RA Chair) and that his claims are out of time.

Findings of fact

[4]These proceedings were initially brought against two regulators: the present Respondent and the Medical Practitioners Tribunal Service (MPTS). The issue of worker status was listed for a preliminary hearing before me in November 2019/February 2020. By a judgment sent to the parties on 20 July 2020, I dismissed the Claimant’s claims against the MPTS on the basis that they were brought out of time. I concluded that the Claimant was a worker of the present Respondent. The pleadings and the list of issues

[5]The Claimant’s ET1 contained the following passages. 5.1. At paragraph 2 of the particulars of claim, he pleaded: ‘The claim against both the First and Second Respondents is a “status” claim in respect of his role as a Tribunal Member and Panel Chair respectively’. 5.2. At paragraph 5 he referred to the fact that he was appointed in March 2012 as a ‘Lay (Nonprofessional and Nonlegal) Panel Chair of the Second Respondent’s conduct and competence committee’. 5.3. At paras 12 and 13 of the ET1, he wrote: ‘It is the Claimant’s case that in respect of both Respondents, notwithstanding the provision of the contract between the parties, that he was not a self-employed contractor but was either an employee or a worker. The Claimant therefore claims for the loss of the various benefits to which he was entitled for the duration of his engagement, by virtue of being an employee or worker for the Respondents’.

[6]At para 2 of the Further and Better Particulars, the Claimant wrote: ‘The claim against both the First and Second Respondents is a “status” claim in respect of his role as a Tribunal Member and Panel Chair respectively’.

[7]The Respondent’s ET3 refers in terms only to the Claimant’s work as a Chair of the FTP committee; it does not refer to the Claimant’s work as a Chair in registration appeal (‘RA’) hearings.

[8]By the beginning of the preliminary hearing on worker status, the parties had failed to comply with the order of the Regional Employment Judge to agree a list of issues. I asked them to do so as I read into the case.

[9]After several failed attempts, an agreed list was produced: the agreed issues in relation to the MPTS were set out over three and a half pages and included limitation issues; the agreed issues in relation to the NMC were in two paragraphs as follows: ‘7. Was the Claimant an employee or a worker within [sic] section 230(3) ERA and/or regulation 2(1) WTR? The Claimant contends he was for the same reasons as set out above in respect of R1.’ The approach to limitation

[10]As for the question of limitation, the two Respondents took a markedly different approach. At paragraph 3 of my reasons, I found as follows: ‘The Respondents are professional regulatory bodies: the MPTS for doctors, the NMC for nurses and midwives. The Claimant was a Tribunal Member with the former and is a Panel Chair with the latter. The relationship (to use a neutral term) with the MPTS ended in April 2018; with the NMC it was, at the time of the hearing, continuing.’

[11]It will be apparent there was no suggestion by the NMC that the Claimant’s relevant work for it had ended.

[12]At paragraph 5 of my reasons, I recorded: ‘The MPTS presented its ET3 on 24 August 2018: it raised limitation issues in relation to both of the claims against it and denied that the Claimant was an employee or a worker. The NMC presented its ET3 on 24 August 2018: it too denied that the Claimant was an employee or a worker. The NMC was content for any limitation issues in respect of the claim against it to be held over for the final hearing, should the claims proceed.’ The evidence before me

[13]There was clear reference to the Claimant’s work as an RA Chair in the evidence I heard. In his witness statement at paragraph 5, Mr Paul Johnson stated: ‘Prior to legislative changes in 2017, the NMC had three Practice Committees, namely the Investigating Committee, the Health Committee and the Conduct and Competence Committee. The legislative changes in 2017 merged the Health Committee and the Conduct and Competence Committee into a single Fitness to Practise Committee. The Claimant is, therefore, now a member of the Fitness to Practise Committee. The Claimant also sits as a Chair in registration appeal hearings which consider appeals by people who have been refused registration by the registrar.’

[14]At paragraph 6, Mr Johnson stated as follows, without referring to the RA work: ‘I make this statement to explain the relationship between the NMC and the Claimant in his role as a member of the Fitness to Practise Committee from an operational perspective. I am aware that the NMC’s General Counsel, Clare Padley, has provided a witness statement explaining the statutory and contractual basis of this relationship.’

[15]However, at paragraphs 42-43 of his statement, under the heading ‘Allocation of hearings’, Mr Johnson stated that there was no regularity to the pattern of sitting days for each panel member. He wrote: ‘During his appointment as a Panel Member the Claimant has sat on the following occasions, these days include sitting as chair for registrations appeals cases.’

[16]Mr Johnson then listed the number of days the Claimant sat in total in each year between 2012 and 2019.

[17]Mr Johnson’s figures were broadly consistent with figures given by the Claimant in his ‘Regulatory Income and Time Analysis’ document, appended to his witness statement for the hearing on status. This too made no distinction between the two types of hearing. He was not challenged on those figures.

[18]At the hearing, the Nursing and Midwifery Council (Midwifery and Practice Committees) (Constitution) Rules Order of Council 2008 was provided. This relates to the constitution of practice committees including the FTP committee. The judgment on status

[19]My judgment on worker status was as follows: ‘The Claimant was a worker of the Second Respondent for the purposes of s.230(3)(b) Employment Rights Act 1996, and Reg 2(1)(b) of the Working Time Regulations 1998.’

[20]In my reasons at paragraph 4, I recorded the Claimant’s case against the NMC as follows: ‘The Claimant contended that, notwithstanding the terms of the contract between him and both Respondents, which characterise him as an independent contractor, he was either an employee within the meaning of s.230(1) Employment Rights Act 1996 (‘ERA’), alternatively a worker within the meaning of s.230(3)(b) ERA; for the purposes of his age discrimination claim against the MPTS, he contends that he was an employee within the meaning of s.83(2) Equality Act 2010 (‘EqA’).’

[21]At para 88 of my reasons, I summarised the work the Claimant did for the Respondent: ‘The Claimant was appointed as a non-registrant, Panel Member Chair of the FTP Committee (known at the time as the ‘Conduct and Competence Committee’) for four years from 16 April 2012. He was reappointed in 2016 for a further four years, ending on 5 April 2020. As might be expected, Chairs generally take the lead at hearings, and also complete a case preparation questionnaire for those hearings in which they sit, the purpose of which is to inform the NMC of any administrative issues which are have arisen. He also sits as a Chair in registration appeal hearings, dealing with appeals by people who have been refused registration by the Registrar.’ The distinctions the Respondent now seeks to make

[22]In her skeleton argument for today’s hearing, Ms Darwin observes that different statutory provisions apply to registration appeal, which were not provided at the hearing and/or to which I was not taken. One of those distinctions, I am told, is that registration appeals are a delegated function of the NMC. Regulation 25 of the 2004 Rules provides that a registration appeal can either be considered by the NMC itself, or by an appeal panel appointed by the NMC for that purpose. Ms Darwin points out that this is in contrast to hearings before the FTP Committee which, referring to paragraph 77 of my judgment, she says ‘cannot be heard by individuals who are employees or agents of the NMC’. That is not quite accurate: the Order I referred to at para 77 provides that ‘the Council may not employ any member of the Council or its committees, or sub-committees’; there is no reference to agency in the Order.

[23]Ms Darwin also submitted (at paragraph 9): ‘There are a number of significant differences between Registration Appeals and hearings before the FtP Committee. By way of brief summary, the NMC appoints panels to hear Registration Appeals on an ad hoc basis, as and when a Registration Appeal is made. There is no formal appointment process for individuals who want to sit on Registration Appeals. The contractual arrangements differ from those that apply to members of the FtP Committee.’

[24]The Claimant was able to demonstrate relatively straightforwardly that this was factually incorrect. He took me to an email of 14 January 2015, in which the Registration Appeal Panel wrote to all panel members of the FTP committee, stating that it required ‘at least 20 new panel Chairs from the FTP pool’. The email invited expressions of interest from existing Conduct and Competence Committee and Investigation Committee panel members.

[25]The email confirmed that ‘the payment schedule is the same as FTP hearings and exactly the same format’. Ms Darwin accepted that no separate contractual documentation relating to this work was produced. She referred, somewhat vaguely, to ‘an oral contract’, although she was unable to say what the terms of that contract were.

[26]The email specifically refers to ‘criteria for recruitment’, which included ‘successful completion of all essential panel member training and e-learning’, i.e. the very training provided to FTP members/chairs (consistent with there being overlap between the two types of work). Attached to the email was an application form.

[27]The Claimant was informed that his application to sit on registration appeals had been successful by email dated 11 March 2015. He began chairing them shortly thereafter (some three years before issuing his claim) and continued to chair them until December 2019 (some eighteen months after he issued his claim). Conclusion

[28]The Claimant’s pleaded claim at para 2 related to his work as ‘Panel Chair’ for the NMC. He used identical language in his FBPs. He sat as a Panel Chair on both FTP and RA hearings.

[29]The Respondent relies on the express reference to the FTP work at para 5 of the Particulars of Claim. However, this was in the ‘Background’ section of the particulars, in which the Claimant narrated when and how he came to work for both the First and Second Respondents. In the case of the NMC, that was by way of his appointment to the Conduct and Competence Committee. The fact that he did not refer expressly to his later appointment to sit as an RA Chair in what is a brief pleading is not, in my judgment, determinative of the issue.

[30]As for the list of issues (above at para 9), as clarified with the agreement of the Respondent, the issue was simply whether the Claimant was an employee or worker of the NMC. No reference was made to that issue being restricted to the Claimant’s work as an FTP Chair.

[31]The fact that the NMC took no limitation issue at the status hearing (paras 10- 12 above), indicated to me that it accepted, contrary to the position it now seeks to adopt, that at least some of the Claimant’s claims were in time. I have no doubt that if it considered that it had a knockout point on jurisdiction, based on a distinction between FTP and RA hearings, it would have taken it, as the MPTS did.

[32]That the Respondent knew that his RA work was part of his case is reflected in the fact that Mr Johnson referred to it, albeit briefly, in his evidence. Ms Darwin submits that Mr Johnson’s use of the word ‘also’ in the passage I have quoted above at para 13 suggests that he considered it to be irrelevant to the issues before me. I disagree. On an ordinary reading, it suggests the opposite: that he was referring to other, relevant work that the Claimant did for the Respondent. That is how I understood it at the time. The fact that he did not deal with it at greater length suggested that there were no material differences between the types of hearing.

[33]As for Mr Johnson’s figures on the number of days for which the Claimant sat (para 15 onwards), the fact that he included RA hearings indicated to me that no distinction was made by the Respondent between the two types of hearings for the purposes of the status issue. Had the RA figures not been relevant to the issue before me, I assumed that Mr Johnson would have excluded them, so as not to distort the picture. Accordingly, I adopted Mr Johnson’s figures in my findings of fact at paragraph 117 as to the volume and regularity of the Claimant’s work as a Chair for the Respondent. There was no challenge to that finding on appeal.

[34]As for the express terms of my judgment (quoted above at para 19), I concluded that the Claimant was a worker of the NMC. The judgment was not restricted to one aspect of his work.

[35]As for my reasons, there was no suggestion in my summary (quoted above at para 20) that the Claimant’s case was confined to his work as an FTP Chair. In para 88 (quoted above at para 21), I specifically included reference to his work as an RA Chair. The fact that I mirrored the language Mr Johnson used in his statement was precisely because I understood him to be saying that registration appeals were a relevant aspect of the work the Claimant did for the Respondent as a Chair. My understanding was that he did not deal separately with registration appeals because what applied to one largely applied to the other. If that were not the case, I would have expected him to say so. He did not. If there were any material differences, I would have expected them to be highlighted. They were not.

[36]The reason why I did not deal with the two types of hearings separately in my reasons was because there was no attempt by the Respondent to draw any distinction between them, either in evidence or submissions. It simply did not take the points it now seeks to take.

[37]As for the distinctions the Respondent now seeks to identify, for the first time, between the two statutory regimes (para 22 above), in my judgment they would not have assisted the Respondent. If Ms Darwin is right, it would suggest a greater, rather than a lesser, degree of integration into the NMC’s organisation. I infer it is for that reason that the point was not made at the status hearing.

[38]As for the other differences Ms Darwin relied on (para 23 above), the email to which the Claimant took me (para 24 onwards) confirmed that Chairs of RA hearings were a subset of FTP panel members. Contrary to Ms Darwin’s submission, appointment was not on an ad hoc basis; it was subject to a formal process. Insofar as there is any reference to contractual arrangements, the email confirmed that the arrangements in relation to pay were identical.

[39]The fact that the Claimant was able to rebut Ms Darwin’s submissions so effectively with a single document supports my conclusion that the reason why the Respondent did not seek to make the distinctions it now seeks to make was because they would not have materially assisted its case.

[40]My judgment in relation to the Claimant’s employment status covered his work as a Chair on both types of hearing. I did not deal separately with them because neither party raised material distinctions between them.

[41]The Respondent now seeks to take points which it could have taken at the original hearing, but which it chose not to take. It is far too late for it to do so.

[42]The Claimant is entitled to pursue his claims in relation to all the work he carried out for the NMC as a panel Chair, including his work on RA hearings. Next steps

[43]A separate letter will be sent out to the parties, making orders in relation to the hearing in January 2023.

[44]In their written submissions the Respondent takes the points below.

[45]The Respondents accept that the Claimant is entitled to bring a claim through Section 23 of the ERA 1998 and concede that he is entitled to recover both EU and UK holiday pay for a period of two years before he presented his claim. If I understand the Respondent correctly the concession in respect of the earlier of the two years in respect of UK holiday entitlement is made as a gesture of goodwill (it not being conceded that there was any right to carry this over).

[46]The Respondent says that the Claimant is barred by reason of Sub-section 23(4A) of the ERA from recovering sums in respect of any earlier period. Anticipating an argument by the Claimant that Sub-Section 23(4A) might breach the principles of equivalence the Respondent relied on Battan v Lloyds Bank plc & Ors Case No: 2200055/2018 where EJ Goodman had accepted that Section 23(4A) did not offend against the principle of equivalence. Many of the authorities provided to me were authorities deployed by the parties in Battan. Ms Darwin KC told me that they had been provided in order that I could see what the decision in that case had been based on.

[47]The Respondent accepted in principle that the Claimant could as an alternative bring a claim under Regulation 30 of the WTR. However, the argument put forward to shut out that claim is that any claim needed to be presented within 3 months of the infringement. That was said to arise ‘within 3 months of the date which it is alleged that the Claimant should have been paid holiday pay’ [Written submissions para 22]. Reliance was placed on The Corps of Commissionaires Management Ltd v. Hughes

[2009] ICR 345

and Scottish Ambulance Service and Truslove and another EATS 0028/11. It was argued that this limited the Claimant’s claims to the period of 20 April 2018 to 20 July 2018 a less favourable remedy than under Section 23 of the ERA 1996 even with the backstop.

[48]In a speaking note and further oral submissions Ms Darwin KC developed the arguments above.

[49]In her speaking note Ms Darvin KC set out the NMC’s position in respect of the Claimant’s contention that he could rely directly on the WTD 2003 (his position being that the NMC was an emanation of the state). At paragraph 27 of her speaking note Ms Darwin accepted that the Claimant could rely on the ‘vertical effect of his Article 7 WTD rights’.

[50]I shall deal with the parties’ additional submissions made after I raised the issue of the unavailability of Section 23 of the ERA 1996 to refusal claims in my discussions and conclusions below. Analysis and conclusions Direct effect/Brexit

[51]In his written submissions Mr Somerville argues that the WTD 2003 is of ‘direct vertical effect’. He says that the NMC is a body created by statute and is accordingly an emanation of the state. Ms Darwin KC deals with that submission in her speaking note. She does not accept that the Respondent is an emanation of the state but says: ‘it is accepted that section 4(1)(a) EUWA 2018 incorporates into domestic law the effect of Articles 7(1) and (2) of the WTD (but not the WTD itself)’.

[52]In Smith v Pimlico Plumbers Ltd Simler LJ dealt with the effect of ‘Brexit’ on the question of whether Mr Smith could rely on the WTD 2003 and to what extent. ‘13 First, I record the position relating to the European Union Withdrawal) Act 2018(as to which there is no dispute). This provides that although the principle of the supremacy of EU law no longer applies to any enactment or rule of law passed or made on or after “IP completion day” (31 December 2020), nor is the Charter part of domestic law on or after IP completion day (section 5(4)), the supremacy principle continues to apply on or after IP completion day so far as relevant to the interpretation, disapplication or quashing of any enactment or rule of law passed or made before IP completion day: see section 5(2). Section 5(4) does not apply where proceedings are begun but not finally decided before IP completion day: see paragraph 39, Schedule 8 to the 2018 Act. Further, the provisions of the Charter recognise established fundamental principles of EU law. The Charter is no longer part of domestic law, but “fundamental rights or principles” that exist irrespective of the Charter are retained in domestic law after IP completion day (section 5(5)). The provisions of the Charter, to the extent that they embody those “fundamental rights and principles”, continue to apply. The tribunals below accordingly proceeded on the basis that the European Union (Withdrawal) Act 2018 has no substantive effect on the issues in this appeal, as do I.’

[53]In common with Mr Smith, Mr Somerville commenced the present proceedings before IP completion date. It follows, for the reasons given by Simler LJ that such preexisting fundamental rights and principles will continue to benefit Mr Somerville in this case.

[54]At paragraphs 30 and 31 in Smith v Pimlico Plumbers Ltd Simler LJ goes on to deal directly with the question of whether the rights under Article 7 of the WTD 2003 are directly effective. She said: ‘30 Although it has been held that article 7 WTD is sufficiently unconditional and precise to be directly effective, it cannot be invoked directly in a dispute between private individuals, such as the dispute here: see Shimizu at para 68. 31 However, the CJEU has also held that the right to paid annual leave is an essential principle of EU social law. Further, that right is affirmed for every worker by article 31(2) of the Charter and is both mandatory and unconditional; it entails, by its very nature, a corresponding obligation on the employer to grant such periods of paid leave or an allowance in lieu of paid annual leave not taken upon termination of the employment relationship; it can be relied on directly in a dispute between private individuals: see Shimizu at paras 74—79. Accordingly, if it is impossible to interpret the national legislation at issue consistently with article 31(2) of the Charter, it will be for the national court hearing a dispute between a worker and his former employer (who is a private individual) to ensure judicial protection for individuals and to guarantee the full effectiveness of article 31(2) by disapplying (if need be) that national legislation: Shimizu at para 80.’

[55]It follows that that the question of whether the Respondent is an emanation of the state is, as recognised by Ms Darwin KC immaterial. Article 7 of the WTD 2003 can be relied upon directly in a dispute between private individuals (at least in a claim started before completion day). The scope of the Article 7(1) right

[56]Having accepted that Mr Somerville can rely on Article 7 of the WTD 2003 for its direct effect I need to examine the scope of the right afforded by Article 7 of the Working Time Directive. In particular I need to consider what rights it confers on workers who, like Mr Somerville worked intermittently but regularly.

[57]Article 7(1) of the WTD 2003 gives a right to paid annual leave. The nature of that right was explained in Smith v Pimlico Plumbers Ltd

[2022] ICR 818

by Simler LJ who, at paragraph 71, explained the reasoning of the CJEU in King v Sash Window Workshop Ltd

[2018] ICR 693

,as follows (my emphasis added): ‘..significantly, the CJEU regarded it as clear from established case law that the right to annual leave and to a payment on that account are two aspects of a single right: see para 35. In other words, there are not two distinct legal entitlements, no matter how the domestic regulations are drafted: there is a single, composite legal entitlement to paid annual leave’

[58]The decision in King drew support from the earlier case of C.D. Robinson-Steele and Others v R.D. Retail Services Ltd and Others Cases C-131/04 and C-257/04. The issue in that case was the legality under EU law of what is usually referred to as ‘rolled up holiday pay’. The CJEU said that the practice in the case before it was not compatible with EU law. Of significance to the present case is the conclusion at para 61: ‘A regime such as that referred to by the questions at issue may lead to situations in which, without the conditions laid down in Article 7(2) of the directive being met, the minimum period of paid annual leave is, in effect, replaced by an allowance in lieu.’

[59]The right afforded by Article 7(1) WTD 2003 applies to ‘every worker’. The WTD 2003 applies without distinction to full-time workers and part-time workers see para 48 of Nicole Wippel v Peek & Cloppenburg GmbH & Co

Case C-313/02

a case which, in common with the present case, Ms Wippel was only offered work when it was available and was free to decline any such offer.

[60]In R v Secretary of State for Trade and Industry, ex parte: Broadcasting, Entertainment, Cinematographic and Theatre Union (BECTU) Case No C173/99 the court was concerned with the then Regulation 13(7) of the WTR 1998 which imposed a 13 week qualifying period before a worker was entitled to the right to take annual leave. The reasons why the Court held that this precondition was incompatible with the directive are set out in the following passages (emphasis added): 46. Furthermore, Directive 93/104 draws no distinction between workers employed under a contract of indefinite duration and those employed under a fixed-term contract. On the contrary, as regards more specifically the provisions concerning minimum rest periods contained in Section II of that directive, they refer in most cases to 'every worker', as indeed does Article 7(1) in relation to entitlement to paid annual leave. 47 It follows that, with regard to both the objective of Directive 93/104 and to its scheme, paid annual leave of a minimum duration of three weeks during the transitional period provided for in Article 18(1)(b)(ii) and four weeks after the expiry of that period constitutes a social right directly conferred by that directive on every worker as the minimum requirement necessary to ensure protection of his health and safety. 48 Legislation of a Member State, such as that at issue in the main proceedings, which imposes a precondition for entitlement to paid annual leave which has the effect of preventing certain workers from any such entitlement not only negates an individual right expressly granted by Directive 93/104 but is also contrary to its objective. 49 By applying such rules, workers whose employment relationship comes to an end before completion of the minimum period of 13 weeks' uninterrupted work for the same employer are deprived of any entitlement to paid annual leave and likewise receive no allowance in lieu even though they have in fact worked for a certain period and, under Directive 93/104, minimum rest periods are essential for the protection of their health and safety. 50 National rules of that kind are also manifestly incompatible with the scheme of Directive 93/104 which, in contrast to its treatment of other matters, makes no provision for any possible derogation regarding entitlement to paid annual leave and therefore, a fortiori, prevents a Member State from unilaterally restricting that entitlement which is conferred on all workers by that directive. Article 17 makes the derogations for which it provides subject to an obligation on Member States to grant compensatory rest periods or other appropriate protection. Given that no such condition is laid down in relation to the right to paid annual leave, it is all the more clear that Directive 93/104 was not intended to authorise Member States to derogate from that right. 51 Furthermore, rules of the kind at issue in the main proceedings are liable to give rise to abuse because employers might be tempted to evade the obligation to grant the paid annual leave to which every worker is entitled by more frequent resort to short-term employment relationships. 52 Consequently, Directive 93/104 must be interpreted as precluding Member States from unilaterally limiting the entitlement to paid annual leave conferred on all workers by applying a precondition for such entitlement which has the effect of preventing certain workers from benefiting from it.

[61]BECTU does not in itself assist with the question of whether article 7(1) rights persist between short term assignments. What it does demonstrate is that the right to paid annual leave is a day one right, available to every worker, that cannot be cut down by national rules if it is to be compatible with EU law.

[62]Mr Somerville says that the contract which the Tribunal ought to regard as governing the employment relationship were the contracts by which he was appointed and not the individual agreements as to when he would or would not work. He says that the 2016 contract he had with the Respondent did not terminate until after he presented his claims. The Respondent says that Mr Somerville’s worker status did not subsist between any sitting dates. It is said that the effect of this is that his contract terminated at the conclusion of any assignment.

[63]If Mr Somerville is right then he will, as he suggests, be entitled to the accumulation of paid leave that applied in both King and Smith many of the arguments in respect of effectiveness and equivalence will fall away. I return to this below.

[64]Ms Darwin KC relies upon the passage of the judgment of Lewis LJ that I have set out above and in particular the following parts ‘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’. She says that if the Claimant was not a worker outside the periods that he actually worked it follows that his contract had been terminated and that the time limits for any claims arising from an individual assignment ran from the end of each assignment.

[65]It is essential that I consider how Article 7 needs to be understood in the case of a worker working like the Claimant on what is, in effect, as required/agreed basis, with an agreement in place that sets out terms of the engagement when work is offered but which does not place any obligations to carry out personal services in between assignments. The present case is an example of the ever more prevalent ‘gig economy’. The point is therefore of some importance.

[66]The right given by Article 7 is a right to 4 weeks ‘paid annual leave’. If, as Ms Darwin KC suggests the right arises and expires at the beginning and end of every assignment then there is simply no possibility of taking paid annual leave within the scope of the contract under which the worker is engaged qua worker. The only possible right that the worker would have would be the right to a payment in lieu of annual leave upon termination of the contract – permissible under Article 7(2) where ‘the employment relationship is terminated’. If that was the only possibility then in my view this would substantially conflict with the established purposes of the right to paid annual leave. The worker in the gig economy would have no rights at all to paid leave but would have a right to a sum of money in lieu on every occasion that they worked. An employer would have no means to encourage the worker to ensure that they take the necessary time for rest and relaxation envisioned by the directive. The risks of gig workers forgoing rights to paid leave in return for short term financial betterment is self-evident. Mr Somerville’s level of remuneration is not the norm.

[67]In my view the purposes of Article 7 can only be met by approaching the phrase ‘the employment relationship’ in manner consistent with the purposes of the directive. It is not in my view necessary or in accordance with the purposes of the directive to interpret that phrase to mean ‘the periods of time during which personal services are or must be rendered’. To do so is to exclude vast numbers of people in the so-called gig economy from the right afforded by Article 7(1) with only the rights afforded by Article 7(2) as a poor substitute. It is a licence to substitute cash for rest and relaxation even if the rights are recognised.

[68]I have considered whether the fact that the Court of Appeal has said that Mr Somerville was not a worker during the periods when he was not actually working means that the conclusions above are not open to me. I do not think that is the case. I consider there is a distinction between having the status of a worker on any given day and a broader concept of being in an employment relationship. The jurisprudence of the CJEU has recognised the breadth of whet might properly be regarded as an employment relationship.

[69]In the course of the hearing I floated this concern with Ms Darwin KC. I suggested that conformity with the purposes of the directive might be achieved if the expression ‘the employment relationship’ was approached in the same way as the decision of the CJEU in Shirley Preston and Others v Wolverhampton Healthcare NHS Trust and Others and Dorothy Fletcher and Others v Midland Bank plc.

Case C-78/98

. The passages I had in mind were as follows (my underlining): ‘64 By its third question, the House of Lords seeks essentially to ascertain whether Community law precludes a procedural rule which has the effect of requiring a claim for membership of an occupational pension scheme (from which the right to pension benefits flows) to be brought within six months after the end of any contract (or contracts) of employment to which the claim relates. 65 This question relates to a number of actions before the national court which are distinguished by the fact that the claimants work regularly, but periodically or intermittently, for the same employer, under successive legally separate contracts. According to the order for reference, in the absence of an umbrella contract, the period prescribed in section 2(4) of the EPA starts to run at the end of each contract of employment and not at the end of the employment relationship between the worker and the establishment concerned. It follows that workers are unable to secure recognition of periods of part-time work for the purpose of calculating their pension rights unless they have instituted proceedings within six months after the end of each contract under which the work concerned was performed. 66 In its written observations, the Commission maintains that the application of a procedural rule of that kind to actions brought by such workers is incompatible with the principle of effectiveness in two respects. First, that procedural rule compels workers wishing to have their periods of part-time employment recognised for the purpose of calculating their pension rights to bring a continuous series of actions in respect of each contract under which they have performed the work concerned. Second, such a rule precludes inclusion of all past service of the workers concerned in the calculation of their retirement benefits even where such service formed part of a continuous employment relationship. Any such workers who brought their first legal actions within the six months following the end of their last contract of employment would be deprived of the possibility of having service under their previous contracts recognised. 67 As pointed out in paragraph 33 of this judgment, the Court has held that the setting of reasonable limitation periods is compatible with Community law inasmuch as the fundamental principle of legal certainty is thereby applied. Such limitation periods cannot therefore be regarded as capable of rendering virtually impossible or excessively difficult the exercise of rights conferred by Community law. 68 Whilst it is true that legal certainty also requires that it be possible to fix precisely the starting point of a limitation period, the fact nevertheless remains that, in the case of successive short-term contracts of the kind referred to in the third question, setting the starting point of the limitation period at the end of each contract renders the exercise of the right conferred by Article 119 of the Treaty excessively difficult. 69 Where, however, there is a stable relationship resulting from a succession of short-term contracts concluded at regular intervals in respect of the same employment to which the same pension scheme applies, it is possible to fix a precise starting point for the limitation period.

[70]There is no reason why that starting point should not be fixed as the date on which the sequence of such contracts has been interrupted through the absence of one or more of the features that characterise a stable employment relationship of that kind, either because the periodicity of such contracts has been broken or because the new contract does not relate to the same employment as that to which the same pension scheme applies.

[71]A requirement, in such circumstances, that a claim concerning membership of an occupational pension scheme be submitted within the six months following the end of each contract of employment to which the claim relates cannot therefore be justified on grounds of legal certainty.

[72]The answer to the third question must therefore be that Community law precludes a procedural rule which has the effect of requiring a claim for membership of an occupational pension scheme (from which the right to pension benefits flows) to be brought within six months of the end of each contract of employment to which the claim relates where there has been a stable employment relationship resulting from a succession of short-term contracts concluded at regular intervals in respect of the same employment to which the same pension scheme applies.’70. In Preston the CJEU were dealing not with any question of interpretation of an EU directive but with the issue of whether the then Equal Pay Act provided an effective remedy for a breach of EU law. That is very different to the question I have been dealing with above. Nevertheless, I find the approach instructive in the interpretation of the rights conferred by Article 7(1).

71. The Preston approach to a stable employment relationship will not catch every form of atypical working. The scope of the Preston definition have been integrated into domestic law and the meaning of a stable employment relationship domestically is now well established in equal pay cases. 72. I agree with Ms Darwin KC that as a matter of domestic law in the WTR 1998 the expression ‘terminated’ in regulation 13(9) and 14 would appear to refer to the termination of a contract. That is consistent with the definitions in regulation 2 and in particular that: ‘“employment”, in relation to a worker, means employment under his contract, and “employed” shall be construed accordingly’. The reference is to the contract rather than the concept of a relationship. However, these are rules of domestic law and cannot be used to cut down the rights afforded to ‘every worker’ if that is inconsistent with EU law – See BECTU. At this stage I am simply attempting to ascertain the effect of the directive on an employee with the working arrangements that Mr Somerville had.

[73]I have come to the conclusion that the expression ‘the employment relationship’ in Article 7(2) of the WTD 2003 must be regarded as having the same meaning as a stable employment relationship in Preston although I have reached that conclusion not for the reasons given in Preston but because to hold otherwise is to effectively exclude those people in a like the Claimant in a stable working relationship from the rights and benefits afforded by Article 7(1). It cannot have been the intention behind the directive to exclude a large proportion of the workforce from its scope otherwise it would not apply to ‘every worker’. It imposes no onerous obligation on employers to monitor the work done by the workers on an annual basis, to encourage the use of paid time off and to keep records that allow a running calculation of entitlement to be kept. Even in the gig economy many responsible employers do exactly that.

[74]I am of course alive to the formalisation of ‘rolled up holiday pay’ provided by the Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 (S.I. 2023/1426). The fact that the law has now changed does not in my view alter the analysis I have set out above. Was there a breach of Article 7(1) in this case?

[75]Mr Somerville was never paid during any period he did not work by the Respondent. The nature of the role was that Mr Somerville accepted sitting obligations. He either fulfilled those obligations or the booking was cancelled by one of the parties. There was no system or scheme in place where Mr Somerville could accept a booking and say that he was taking holiday instead of sitting. I have no doubt that Mr Somerville had periods when he was not working for the Respondent, but those periods were no more ‘annual leave’ than a weekend is for a person contracted to work only on weekdays.

[76]I consider that, on the undisputed facts, Mr Somerville has established that the Respondent unlawfully failed to afford him paid annual leave as required by Article 7(1). It neither afforded him leave nor pay let alone the composite right of paid leave.

[77]Article 47 of the EU Charter of Fundamental Rights provides that the contracting states are required to give an effective remedy to any person whose rights and freedoms guaranteed by the law of the Union are violated. The effect of King and Smith

[78]In King v Sash Window Workshop Ltd the CJEU held that the WTD 2003 and the case law of the ECJ precluded any national implementation of the directive that required a worker to actually take unpaid annual leave before being able to claim for pay. The court held that (at para 63) (emphasis added): ‘It follows from the above that, unlike in a situation of accumulation of entitlement to paid annual leave by a worker who was unfit for work due to sickness, an employer that does not allow a worker to exercise his right to paid annual leave must bear the consequences’. The consequences that were said to follow was that: ‘art.7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave.’

[79]The decision in King v Sash Window Workshop Ltd left open the question of where the ability to carry over the right to paid leave applied only where the leave was not taken or whether it applied in the same way where leave had been taken but was unpaid. In Smith v Pimlico Plumbers Ltd

[2022] ICR 818

the Court of Appeal accepted that it did. Mr Smith, who’s pleaded case was that he had not been paid for leave that he had taken, was able to carry over the right to paid annual leave until the termination of his contract. He was able to recover in respect of the entirety of his employment as he had brought his claim within three months of his dismissal.

[80]It is a matter for each member state to set procedural rules in respect of claims to enforce these EU rights. If limitation provisions are to be included in those rules then it is necessary to fix a starting point to any limitation period. The submissions of the Respondent are to the effect that as Mr Somerville could not be regarded as a worker between assignments that must trigger national rules relating to limitation. What that overlooks in my view is that the very decision that the limitation periods would be triggered is a national rule of procedure itself (whether found in the legislation or in case law). What is made clear in King and Smith is that such national rules must be disregarded where the employer has refused to facilitate paid annual leave. The effect of that conclusion

[81]It follows from my conclusion that it is immaterial that Mr Somerville’s individual assignments were not continuous and that in between those assignments there were periods where he could not be regarded as a worker. It is beyond any reasonable argument that he, and the Respondent, regarded themselves as being in a stable employment relationship. The fact that the contracts that would govern the terms of engagement were periodically renewed (and eventually terminated) is a finding made by EJ Masserella and in my view is sufficient to determine this point. I note that the Respondent’s objections to the Claimant’s application to amend were in part based upon the subsistence of a relationship.

[82]It follows that I have come to the conclusion urged upon me by Mr Somerville that his case in EU law cannot be distinguished from that of Mr King and Mr Smith. He, like them, was denied the right to paid annual leave and he, like them, is entitled to carry over the accrued rights until the he is either afforded an opportunity to take the leave or the employment relationship is terminated.

[83]I have perhaps reached that conclusion for somewhat different reasons than those urged upon me by Mr Somerville nevertheless I consider his instinctive approach to the rights conferred by direct application of EU law to be correct. Can the domestic legislation be interpreted to give a remedy?

[84]The finding that there is a breach of EU law does not in itself guarantee Mr Somerville a particular remedy. However, I am required to interpret domestic legislation in a way that provides Mr Somerville with a remedy that satisfies the requirements of effectiveness and equivalence.

[85]In Smith v Pimlico Plumbers Ltd Simler LJ explained the obligation on courts and tribunals. She said: ‘29 The approach to interpreting and applying the WTR is not in dispute. The relevant provisions must be interpreted, as far as possible, in the light of the wording and purpose of the WTD in order to achieve the result pursued by the WTD: see Marleasing SA v La Comercial Internacional de Alimentacin SA (

Case C-106/89

)

[1990] ECR I-4135

. This includes, as the CJEU made clear in Max-PlanckGesellschaft zur Forderung der Wissenschaften eV v Shimizu (

Case C-684/16

)

[2019] 1 CMLR 35

(“Shimizu”) at para 60, “the obligation for national courts to change established case law, where necessary, if it is based on an interpretation of national law that is incompatible with the objectives of a Directive.”

[86]Having come to the conclusion that Mr Somerville is entitled to carry over his rights to paid annual leave until the termination of the employment relationship (as opposed to each worker contract) then I must deal with the position in the domestic legislation. A difference between Mr Somerville’ position and Mr King and Mr Smith is that in the latter cases the employment relationship had terminated. I need to address the question of whether that makes any difference.

[87]It is quite clear from the decision of the CJEU in King v Sash Window Workshop Ltd & others that there can be no restriction or precondition in national law on a worker’s rights to seek a remedy for a breach of the rights given by Article 7 of the Working Time Directive. It follows that a worker, denied a right to paid annual leave by reason of her/his employer’s failure to recognise that right, cannot be required to terminate the relationship in order to enforce the right.

[88]In Smith v Pimlico Plumbers Ltd Mr Smith had advanced his claim on the basis that he had taken annual leave and not been paid for it. He contended that the manner in which he had pleaded his case was sufficiently wide that it should be taken to include a claim brought under Regulation 14 of the WTR 1998. The Court of Appeal disagreed holding at paragraphs 56 and 57 that the Employment Tribunal had been entitled to conclude that: ‘in substance a claim on termination, pursuant to regulation 14, for pay in lieu of leave which had not been taken (whether throughout the engagement or its final year), was not pleaded’. His claim was therefore confined to a claim that he took annual leave each year but was not paid for it. Domestically that claim could not have succeeded because Mr Smith had not brought his claim within 3 months of his last day’s holiday.

[89]The route through which Mr Smith succeeded through the domestic legislation is not spelt out in terms. Having set out her reasons for concluding that the approach in King should apply to circumstances where annual leave was taken but unpaid Simler LJ said (with my emphasis): Accordingly, I can see no principled basis in the CJEU’s judgment in King (or the subsequent cases) for treating the worker who takes unpaid leave differently from the worker who takes less than the full leave to which he is entitled, in circumstances where both are unable to exercise the right to paid annual leave because of the employer’s refusal to recognise the right and remunerate annual leave. It does not matter what means are adopted for transposing the right to paid annual leave or what the domestic system for remedies is. The single composite right in EU law is to take annual leave and to have the benefit of the remuneration that goes with it when the leave is taken. This is a particularly important health and safety right guaranteed by the WTD and by the Charter. Failure to pay for annual leave or uncertainty about pay is liable to detract from the rest and relaxation that should be afforded by periods of paid leave and to deter workers from taking it. The employer must bear the consequences of the refusal to recognise and remunerate the right; is under a duty to establish the correct position; and cannot be allowed to benefit from not paying for annual leave to the detriment of the worker’s health and of the purpose of the WTD. In these circumstances, it seems to me that properly understood, the CJEU’s reasoning in King (confirmed in the subsequent cases) extends to cover the worker who takes unpaid leave because the employer refuses to recognise the worker’s right to paid leave and remunerate the leave, and means that this worker too is prevented from exercising the single right to paid leave afforded by article 7(1) WTD. 87 Contrary to the reasons relied on by the Employment Appeal Tribunal

[2021] ICR 1194

, at para 92, this interpretation does not make the time limits for claims under regulations 13 and 16 ineffective. Whatever the position might be in other cases (for example, when a worker is paid in part for annual leave, or is underpaid) a worker can only carry over and accumulate a claim for payment in lieu on termination when the worker is prevented from exercising the right to paid annual leave, and does not take some or all of the leave entitlement, or takes unpaid leave, for reasons beyond his control, because the employer refuses to recognise the right and to remunerate annual leave. The principles which justify treating these two cases differently from other cases derive from King (and the subsequent cases), as explained above. The three-month time limit for making a claim, which runs from the termination of employment, applies in either case. Provided a claim for payment in respect of the breach of these rights is made within a period of three months beginning with the date of termination, it will be in time.’

[90]The Court of Appeal had expressly determined that Mr Smith had not brought a claim relying on Regulation 14 of the WTR 1998. Furthermore the Employment Tribunal, and the Employment Appeal Tribunal had both held that Mr Smith had presented his claim for non-payment of holiday actually taken brought under Regulation 16 outside the statutory time limits in Regulation 30. There was no appeal against that conclusion.

[91]In order to be able to read the WTR 1998 in a manner compliant with the obligations imposed by the WTD 2003 the Court of appeal proposed that Regulation 13 be read as including an additional paragraph reading as follows: ‘(16) Where in any leave year an employer(i) fails to recognise a worker’s right to paid annual leave and

(ii) cannot show that it provides a facility for the taking of such leave, the worker shall be entitled to carry forward any leave which is taken but unpaid, and/or which is not taken, into subsequent leave years.’

[92]Further changes are read into Regulation 14 to provide for a payment in lieu accumulated leave. Those changes have now been incorporated into the Amended WTR 1998.

[93]I shall now deal with all the potentially available domestic remedies in turn. In doing so I shall deal with the potential remedy afforded by treating the situation in the present case as a ‘refusal claim’. Below I accept the Respondent’s submission that there is no such claim before me. The reason I considered it sufficiently important to deal with this potential claim in some detail is in case I am wrong about the scope of the claim. In addition I may be wrong in accepting that I am entitled to assume that Mr Somerville has taken sufficient unpaid leave as to extinguish any EU rights to do so. If I were wrong about that it seems to me that I could not treat the claim as being a claim for unpaid wages. A refusal case - Regulation 30(1)(a)?

[94]Regulation 30(1)(a) of the WTR 1998 provides a route through which a worker denied the right to paid annual leave can complain prior to termination of the employment relationship. I consider it necessary to examine the scope of that right.

[95]In King v Sash Window Workshop Ltd & others Mr King had taken some unpaid leave during his engagement but not enough to exhaust his entitlement under Article 7(1). The Employment Tribunal ordered the Respondent to pay the Claimant for any untaken leave holding that there was an unlawful deduction of wages when the Respondent failed to ensure that the Claimant took leave. In the Employment Appeal Tribunal Simler J (as she was) held that it was not open to the Tribunal to infer that Mr King would have been prevented from taking leave by his employer. That conclusion relied on the fact that Mr King did take some unpaid leave without protest by his employer. On that basis she allowed the appeal and remitted the case to the Employment Tribunal. She went on to deal with the fact that the Tribunal had dealt with the matter as a series of unlawful deductions from wages. She said: ‘37. There is another difficulty with the Tribunal’s reasoning. The Tribunal’s conclusion in paragraph 46 indicates that it viewed this claim (for Holiday Pay 3) as based on the Respondent’s refusal to permit the Claimant to take paid leave. Whilst it is undoubtedly the case that claims for non-payment of holiday pay due under regulation 16(1) or for non-payment of pay in lieu of holiday not taken in the termination year under regulation 14(2) can be brought as claims for unlawful deductions from wages properly due (Stringer, particularly at 29 and 31), the same conclusion does not obviously follow in relation to a complaint based on refusal to permit a worker to take annual leave in accordance with regulation 13. 38. Here, the Claimant was paid his wages for the periods he would otherwise have taken as annual leave. What he lost was not wages but the health and welfare benefits of taking annual leave. Regulation 30 WTR recognises the difference. Under regulation 30(5) where a Tribunal finds that there has been a failure to pay in accordance with regulation 16 (1) (or on termination 14(2)) the remedy is an order requiring the employer to pay the worker the amount found to be due to him in that regard. However, where the complaint is based on a refusal to permit the exercise of these rights, an award of compensation on such basis as is considered just and equitable shall be made, having regard both to the employer’s default in refusing to permit that exercise and to any loss sustained by the worker as a consequence. Such an award of compensation cannot in my judgment be regarded as “wages” within section 27(1) ERA. It is not paid as part of the consideration for work done or to be done under the contract but rather as unliquidated damages for the refusal to allow a right to be exercised or in respect of leave that has not been taken. Whilst a remedy for such a complaint is expressly afforded by regulation 30 WTR, a remedy based on unlawful deduction from wages under section 23 ERA is not available on such a complaint.’ ‘Unliquidated damages’

[96]At the level of the Employment Tribunal the question of whether Simler J was right to regard the compensation that may be ordered where a claim is advanced through Regulation 30(1)(a)( ‘a refusal case’) as not being ‘wages’ falling within Section 27 of the ERA 1996 is that I am bound by her conclusion. The decision is clearly part of the reasoning and is not disturbed by the later decision of the CJEU. If that were not the case I would have come to the same decision for the reasons set out below.

[97]In response to my request for further submissions on this point Mr Somerville says, ‘Para 38 of King appears, on its face, to be an authority that compensation for the loss of health and welfare benefit is available by regulation 30 WTR and not section 23 ERA, subject to any other later or higher authority’. What he says above is that as he is claiming both the loss of welfare benefits and the wages he says he ought to have been paid his case can be distinguished from King. Ms Darwin KC said: ‘Mr Somerville’s complaint, as the Respondent understands it, is that the Respondent failed to pay him the whole or any part of any amount due to him under Regulation16(1) WTR 1998. It is a claim brought under Reg 30(1)(b) WTR 1998. Accordingly, the Employment Tribunal is concerned with the remedies available under Regulation 30(5) WTR 1998. The Respondent accepts that a claim for unlawful deduction of wages can be brought in relation to amounts owed under Regulation 30(5) WTR 1998. This is also consistent with the EAT’s judgment in King, as set out above’. Accordingly whilst both parties dispute that this aspect of the reasoning in King has any bearing on this case they both accept that Simler J has properly stated the position.

[98]Whilst the definition of ‘wages’ in Section 27 of the ERA 1996 is broad and has been held to include any sums payable as ‘holiday pay’ (see Revenue and Customs Commissioners v Stringer

2009 ICR 985

, HL) any claim for wages must relate to a quantified/liquidated sum and not to a claim for damages see Delaney v. Staples (t/a De Montfort Recruitment)

[1992] IRLR 191

, Coors Brewery Ltd v Adcock

[2007] EWCA Civ 19

[99]In Revenue and Customs Commissioners v Stringer the House of Lords were dealing with the question of whether the expression ‘holiday pay’ in Section 27 of the ERA 1996 was apt to include failures to make payment under Regulation 14 of the WTR 1998 Lord Walker made the following observations: 41. Because the WTR are concerned primarily with health and safety, breaches of some of the provisions in Part II of the WTR, such as regulations 10 (Daily rest), 11 (Weekly rest period), 12 (Rest breaks) and 13 (Entitlement to annual leave) do not give rise to readily quantifiable monetary claims. If a worker works and receives a week’s pay, when he should have had a week’s holiday with pay, it is rest and recreation, not money as such, that he has lost. Consequently regulation 30 (Remedies) provides for statutory compensation to be awarded by the employment tribunal as is just and equitable in the circumstances, having regard to the employer’s default and any loss sustained by the worker (see regulation 30(1)(a)(i), (3) and (4)). Some other claims under Part II, that is under regulations 14 (Compensation related to entitlement to leave) and 16 (Payment in respect of periods of leave), are liquidated in nature. For them the remedy is an order for payment of the amount due: see regulation 30 (1)(b) and (5)……46. The purpose of section 13(3) is not immediately apparent but it has been interpreted as having two important effects. In Delaney v Staples

[1991] 2 QB 47

the Court of Appeal (Lord Donaldson of Lymington MR, Ralph Gibson LJ and Nicholls LJ) relied on its predecessor (section 8(3) of the Wages Act 1986) for the conclusion that “a deduction from wages” can for this purpose cover a total failure to pay any wages when due (in that case, contractual commission and holiday pay). But the Court of Appeal also held that the employment tribunal had no jurisdiction to make an award in respect of an unliquidated contractual claim for a payment in lieu of notice. The House of Lords

[1992] 1 AC 687

dismissed the ex-employee’s claim on the latter point (on which the law has since been changed, in 1994, to give employment tribunals a limited jurisdiction to hear certain contractual claims for unliquidated sums). There was no cross-appeal against the Court of Appeal’s decision as to the meaning of “a deduction from wages", nor was it challenged before your Lordships.

47. The other decision of the Court of Appeal on section 13(3) is New Century Cleaning Co Ltd v Church

[2000] IRLR 27

. In that case the Court of Appeal (Beldam and Morritt LJJ, Sedley LJ dissenting) held, on unusual facts arising out of the way a team of window cleaners operated, that the effect of the words “properly payable by him to the worker on that occasion” excluded anything in the nature of an unliquidated claim from coming within section 13. Again, that decision has not been challenged before your Lordships. It is not directly relevant to Mr Ainsworth’s claim but it shows that the very wide definition of “wages” in section 27 of the ERA (the last section in Part II) must in effect be filtered, for the purposes of a claim under section 13, by eliminating any unliquidated amounts. The definition of “wages” in section 27 (to which I now proceed) does contain some items (for instance, some of those in subsection (1)(e) and (f): see sections 60(3) and (4) and 70(6) and (7) of the ERA) which, like statutory compensation under regulation 30(3) and (4) of the WTR, cannot be quantified until the employment tribunal makes its own evaluative judgment on a claim.

[100]I do not consider that these observations amount to a binding conclusion that the unliquidated damages available under Regulation 30(3) and (4) cannot amount to wages as the remarks do not form part of the essential reasons. That said, they provide highly persuasive authority that such unliquidated sums would not ordinarily fall within Section 27.

[101]According to Simler J (as she was) the route by which Mr King could complain of a refusal to permit him to take paid annual leave was through Regulation 30(1)(b) of the WTR 1998. The remedies available are those in Regulation 30(3) read with 30(4). A tribunal must make a declaration but may award compensation in an amount that is just and equitable having regard to the factors set out in regulation 30(4). The word may connote a discretion to be exercised by the Tribunal (albeit in a principled way) – see Miles v. Linkage Community Trust Limited

[2008] IRLR 602

where no compensation was awarded despite a breach.

[102]In many cases where there had been a refusal to allow paid annual leave the compensation that would be just and equitable would be the equivalent of the wages payable for the period of leave. The wages being thought to be the value of the employee’s time. It is easy to construct an example where that would not be the case. If the worker had booked an expensive and non-refundable family holiday on the assumption that the employer would respect the right to paid annual leave the worker might be out of pocket to the value of the holiday costs. It is difficult to see why those costs should not be included in what it is just and equitable to order the employer to pay.

[103]In Santos Gomes v Higher Level Care Ltd (CA)

[2018] ICR 1571

the Court of Appeal were invited to overturn the decision of the Employment Tribunal which, having found a breach of Regulation 12 of the Working Time Regulations, declined to make an award for injury to feelings under Regulation 30(3). The Court of Appeal declined to do so saying (Per Singh LJ at para 64) ‘the phrase just and equitable does not confer a general power on tribunals to award what they think ought to be awarded in a form of palm tree justice’. The Court of appeal agreed with the Tribunal that the appropriate measure of compensation should be calculated as the wages for the time of the missing rest breaks. I do not consider that Santos Gomes is authority for the proposition that the compensation that might be awarded under regulation 30(4) is always calculated by reference to the time worked (which should have been a form of leave). In Grange v Abellio London Ltd

UKEAT/0304/17

The Employment Appeal Tribunal held that Santos Gomes did not preclude an award for personal injury. I am unsurprised by that conclusion. As the case law of the CJEU has consistently made clear the purpose of the WTD 2003 is aimed at health and safety. Where a failure to respect the rights conferred by the Directive is shown to have caused personal injury perhaps with consequential financial loss it would be remarkable if the loss could not be recovered in national law.

[104]I do not consider it possible to construe the phrase ‘holiday pay’ in Section 27(1) of the ERA 1996 as including unliquidated damages for personal injury or compensation for a cancelled holiday. Such sums are in no sense holiday pay. Equally as Lord Walker remarked in Revenue and Customs Commissioners v Stringer ‘If a worker works and receives a week’s pay, when he should have had a week’s holiday with pay, it is rest and recreation, not money as such, that he has lost’. The fact that a Tribunal might fix compensation at a level referable to wages does not convert that compensation into ‘holiday pay’.

[105]The conclusion I reach is that the domestic remedy afforded by Regulation 30(1)(a) does not amount to wages and cannot be pursued as an alternative claim via the mechanism of a claim for unlawful deduction from wages.

[106]If a claim had been brought under Regulation 30(1)(a) I need to consider whether it had been brought in time. I see no difficulty whatsoever reading the WTR 1998 consistently with the obligation I have identified imposed by Article 7(1) of the WTD 2003 to a person in Mr Somerville’s position to enable him to bring a claim through the mechanism of Regulation 30(1)(a). The time limit runs from ‘the date on which it is alleged that the exercise of the right should have been permitted’. In a case where the right has accumulated that will be a continuous state of affairs up to the point where the right to paid annual leave is recognised or the employment relationship is terminated. No additional words need be written into the legislation to give effect to the EU right.

[107]It follows that I find that Regulation 30(1)(a) of the WTR 1998 can be read as including the right to bring an accumulated right to paid annual leave which is not recognised by the Employer resulting in a ‘refusal’ for the purposes of that regulation. A claim can be brought at any time during the continuance of the refusal up to the date, within three months (plus any early conciliation extension) from the date that the right is recognised or the employment relationship (as opposed to any individual contract) is terminated. On this basis a claim brought in those terms by Mr Somerville would have succeeded.

[108]I further conclude that where because of a ‘refusal’ by the employer to recognise the right to paid annual leave the worker takes no time off work there can be no claim brought under Part II of the ERA 1996 because any claim is in respect of unliquidated damages which are not in the nature of ‘holiday pay’ and therefore fall outside the definition of wages in Section 27 of the ERA 1996.

[109]Whilst I would have found for Mr Somerville on this basis I consider that it is not open to me to do so for two reasons. The first is that this is not the way that Mr Somerville has put his case. Ms Darwin KC is correct in her submissions to that effect. Through successive case management hearings the Claimant has pinned his colours to the mast of Regulation 16/30(1)(b) and/or Section 23 of the ERA 1996. The fact that I have identified a different route risks me ‘entering into the arena’ and is arguably improper.

[110]A further reason for me not putting Mr Somerville’s own characterisation of his case to one side and deciding the claim on the basis above is a matter of jurisdiction. Section 4(3)(ce) of the Employment Tribunals Act 1996 (at the time) provided that a judge sitting alone could hear claims ‘proceedings on a complaint under regulation 30 of the Working Time Regulations 1998 relating to an amount due under regulation 14(2) or 16(1) of those Regulations’. It follows that a complaint brought under Regulation 30(1)(a) is not a complaint that I have determine other than with a full tribunal.

[111]I have concluded that it is not open to me to take a point not run or adopted by Mr Somerville. I would be improperly entering into the arena and what is more having taken the point of my own volition I would need to take steps (if that were possible) to reconvene as a full tribunal. Claims under Regulation 30(1)(b)

[112]In the WTR 1998 claims may be brought where there is a failure to make any payment due under Regulations 14 and 16. Regulation 14/Regulation 30(1)(b)

[113]Where the employer does not recognise the worker’s right to paid annual leave there is no difficulty seeing how a claim under Regulation 14 (in the alternative to a claim under Regulation 30(1)(b)) might be brought upon termination of the contract.

[114]For a person with a continuous contract (such as Mr King or Mr Smith). The reasoning in King and Smith is that the rights to paid annual leave accumulate until they are afforded paid annual leave or termination. Upon termination they would have been entitled to a payment in lieu of the accrued rights. Such a claim can be brought domestically through Regulation 14. The Court of Appeal in Smith read words into Regulation 14 in order that that regulation has that effect. The fact that Mr Smith had not brought such a claim was not fatal to him for the reasons I have set out above. I have held that the rights under Article 7(1) to paid annual leave accumulate until the end of the employment relationship (and not an individual contract). That means that Mr Somerville is in the same position.

[115]A claim under Regulation 14 can only be brought upon termination. It follows that it is not possible to use this route unless termination has occurred. To permit an employee to do otherwise is to breach the prohibition in Article 7(2) of the WTD 2003 that the right to paid leave may not be replaced with money unless the employment relationship has ended.

[116]If Mr Somerville’s employment relationship with the Respondent had terminated then it would have been open to him to have brought a claim under Regulation 14. He says, and I have found, that it had not terminated. Furthermore, Mr Somerville, has expressly disavowed any intention to rely on Regulation 14.

[117]I conclude that it would be possible in a hypothetical case to bring a claim for rights accumulated under the principles in King and Smith through Regulation 14. In the present case I find that that is not open to Mr Somerville for two reasons. Firstly the employment relationship with the Respondent had not terminated. Secondly, he has expressly disavowed such a claim. Regulation 16/Regulation 30(1)(b)

[118]I turn to the issue of whether in the circumstances of this case it is possible to bring a claim under Regulation 16/30(1)(b). I have come to the conclusion that it is. My reasons are below.

[119]It is not open to a worker to bring a claim under regulation 16 of the WTR 1998 unless she/he has taken annual leave. If it were possible to bring a claim under Regulation 16 without taking leave then that would be a substitution of cash for leave which is prohibited by Article 7(2) in the WTD 2003 and Regulation 13(9)(b) domestically. Importantly, interpreting the rights under Regulation 16 as arising only when leave is taken is consistent with the grain of the legislation. Were it otherwise an employee might both work and receive wages being paid twice for the same period of time.

[120]It follows in my view that it is only open to a worker to bring a claim under regulation 16 if they have actually taken time off work. If they have taken time off work, even if the employer has refused to pay them, then in my view there is nothing to prevent the worker bring a claim relying on Regulation 16. In a case where the employer refuses to recognise the right to paid holiday, the fact that, there is no need to do so because the rights would continue to accumulate, is beside the point.

[121]For reasons I do not fully understand, the Respondent has conceded that Mr Somerville does not have to demonstrate that he actually took any annual leave. For the reasons I have set out above I can see why that is the proper approach in a case relying on Regulation 30(1)(a) (‘a refusal’ ) or a claim relying on Regulation 14. I do not see why it is thought to be irrelevant in a claim relying on Regulation 16.

[122]Whilst Mr Somerville may not have taken paid annual leave from the NMC that is not to say that he did not have time that he regarded as a break from work taken at his own volition and at times he chose. It appears that the position taken by Mr Somerville was that it was impossible for him to attribute any unpaid annual leave that he actually took to his engagement with the Respondent. EJ Masserella sets out Mr Somerville’s ‘portfolio career’. I accept that it would be impossible to identify particular dates as being time off from working for the Respondent. I am also prepared to accept that Mr Sommerville did take time off. Given that the Respondent has not required Mr Somerville to prove when he took any such break I consider that the concession is such that I should accept that Mr Somerville did take annual leave (albeit unpaid) exhausting his entitlement to leave under Regulation 13 of the WTR 1998.

[123]In Smith it appears that the Court of Appeal accepted that Mr Smith was able to bring his claim through Regulation 16 (his only pleaded claim) as the domestic route to a claim brought under EU Law. I see no grounds to distinguish the position of Mr Somerville (once I have disposed of the argument that the employment relationship terminated). The Court of Appeal in Smith have held that the rights under Article 7(2) accumulate until termination. There is no reason why a worker could not bring an earlier claim. It could not be a precondition or seeking pay for holiday taken but unpaid that the Worker would have to resign from their employment.

[124]As explained in Smith the time limit set out in Regulation 30(2) of the WTR 1998 remains effective, but a claim will only be presented out of time where three months (plus any early conciliation extension) have elapsed from the point at which the right is recognised, or the employment terminated. In Mr Somerville’s case the NMC had not recognised his rights to paid annual leave at the point that he presented his claim. His claim is therefore in time.

[125]There is no difficulty reading the WTR 1998 as affording Mr Somerville a remedy. The Court of Appeal in Smith having read in the words now found in Regulation 13(16) WTR 1998 no further reding down is necessary.

[126]It follows that the domestic route through the WTR 1998 affords an effective remedy for the breach of Mr Somerville’s rights to paid annual leave conferred by Article 7(1) of the Working Time Directive. He does not need to rely on Sections 13/27 of the ERA 1996 or concern himself about the limitation provisions applicable to such a claim. If I am wrong about ‘termination of the employment relationship’

[127]My conclusions above all rest on my finding that Article 7(1) requires to be read as subsisting throughout an employment relationship evidenced by a stable employment relationship. If I am wrong about that I need to revisit most if not all my conclusions. I should assume that the obligations under Regulation 7(1) terminated at the end of each agreed period of work. For the purposes of the WTR 1998 the effect of that would be: 127.1. That any ‘refusal’ for the purposes of Regulation 30(1)(a) would have taken place at the point of each termination; and 127.2. That any claim under Regulation 14 would have arisen at the day when payment ought to have been made (presumably the next payroll); and 127.3. Any claim under Regulation 16 would have arisen at the point of the next payroll after the leave was taken (assuming that there ever was any).

[128]This would mean that Mr Somerville’s remedy would be limited to only the last few months before he presented his claim. The decisions in King and Smith relating to the accumulation of the rights to paid annual leave would be of no application to Mr Somerville’s case. The rights would never accumulate because of the terminations. What Mr Somerville would be left with is a number of unlawful acts. The time limits in any domestic legislation would be applicable to any claims unless Mr Somerville can show that they breach the EU principle of effectiveness and/or equivalence.

[129]If the claims are brought under the WTR 1998 then the time limits run from each alleged unlawful act. There is no provision in the Regulations for stringing together a series of similar acts. It is for that reason that the Respondent says that the Claimant would be better off bringing a claim for unlawful deduction of wages under Part II of the ERA 1996. The Respondent goes on to say that the Claimant’s claims under Section 23 are limited to 2 years before he presented his claim by reason of Sub-section 23(4A).

[130]Mr Somerville says that I should disapply Section 23(4A) he says that a failure to do so offends against the principles of effectiveness and equivalence.

[131]As I have held above claim for unliquidated damages in a refusal case is not a claim for wages and cannot be pursued through the Part II of the ERA 1996. The domestic remedy is through Regulation 30(1)(a). The only claims that might be made through Part II of the ERA 1996 are claims for holiday pay which may include sums due under regulation 14 or 16.

[132]The Respondent concedes that Mr Somerville is entitled to claim ‘holiday pay’ for the last two years before he presented his ET1. The Respondent does not say whether that concession is on the basis that Mr Somerville is entitled to rely on Regulation 14 in respect of each termination of his worker contract or whether it accepts that Mr Somerville took some annual leave and is entitled to be paid for it. I have presumed it is the latter. Effectiveness and equivalence – Law

[133]As I have set out above Article 47 of the EU Charter of Fundamental Rights requires member states to provide an effective remedy for any breach of EU law. It is well established that there are two facets to this. The first is that the remedy must be effective in the sense that there is an available practical legal route for the enforcement of the right before a domestic court or tribunal. The second the domestic route to a remedy for any breach of EU law must be no less favourable than for a breach of a similar domestic law. This second requirement has been referred to consistently as a requirement of equivalence.

[134]In R (on the application of UNISON) v Lord Chancellor

[2017] UKSC 51

in the context of deciding upon the legality of the requirement to pay fees in order to bring tribunal claims enforcing EU rights the court addressed the issue of whether the fees order meant that claimants did not have an effective remedy. The basic approach is set out in the Judgment of Lord Reid in paragraphs 106 to 109. In particular: 134.1. ‘EU law has long recognised the principle of effectiveness: that is to say, that the procedural requirements for domestic actions must not be “liable to render practically impossible or excessively difficult” the exercise of rights conferred by EU law’ – para 108 134.2. In terms of article 52(1): “Any limitation on the exercise of the rights and freedom recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.” – para 107 134.3. ‘The burden lies on the state to establish the proportionality of restrictions where, as in the present case, they are liable to jeopardise the implementation of the aims pursued by EU directives.’ – para 107 134.4. one general point to note is the emphasis placed by the Strasbourg court on the protection of rights which are not theoretical and illusory, but practical and effective. That is consistent with the recognition in domestic law that the impact of restrictions must be considered in the real world. – para 109

[135]There is no objection in principle to a domestic rule of procedure that imposes a limitation period. In Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland ECJ Case 33/76 [1976] ECR 1989 the CJEU held that (with emphasis added): 135.1. ‘It is the national courts which are entrusted with ensuring the legal protection which citizens derive from the direct effect of the provisions of Community law’ 135.2. ‘in the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of Community law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature.’ 135.3. ‘the right conferred by Community law must be exercised before the national Courts in accordance with the conditions laid down by national rules.....The position would be different only if the conditions and time-limits made it impossible in practice to exercise the rights which the national courts are obliged to protect....This is not the case where reasonable periods of limitation of actions are fixed.....The laying down of such time-limits with regard to actions of a fiscal nature is an application of the fundamental principle of legal certainty protecting both the tax-payer and the administration concerned.

[136]Ms Darwin KC, adopting the approach of EJ Goodman in Battan & others, relied on Test Claimants in the FII Group Litigation v HMRC

(2012) UKSC 19

for the proposition that it is also permissible to shorten time limits, provided there is a reasonable transition period, compatible with legitimate expectation. In that case the Supreme Court made a reference to the CJEU asking whether the enactment of a provision that retrospectively removed the ability of the test claimants to rely upon a cause of action to reclaim wrongly paid tax infringed EU law. In FII Group Litigation v HMRC Case C‑362/12 the CJEU held that it did. In doing so the CJEU identified the following points of principle: ‘31 In the absence of EU rules on the recovery of national taxes unduly levied, it is for the domestic legal system of each Member State, in accordance with the principle of the procedural autonomy of the Member States, to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions at law for safeguarding the rights which taxpayers derive from EU law. The Member States none the less have responsibility for ensuring that those rights are effectively protected in each case (see Case C‑93/12 Agrokonsulting-04 [2013] ECR, paragraph 35 and the case-law cited). 32 The detailed procedural rules governing actions for safeguarding a taxpayer’s rights under EU law must thus be no less favourable than those governing similar domestic actions (principle of equivalence) and must not be framed in such a way as to render impossible in practice or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness) (see, inter alia, Joined Cases C‑317/08 to C‑320/08 Alassini and Others [2010] ECR I‑2213, paragraph 48 and the case law cited, and Agrokonsulting-04, paragraph 36). 33 As regards the latter principle, the Court has held that it is compatible with EU law to lay down reasonable time-limits for bringing proceedings in the interests of legal certainty which protects both the taxpayer and the authorities concerned. Such time-limits are not liable to render impossible in practice or excessively difficult the exercise of rights conferred by EU law. However, in order to serve their purpose of ensuring legal certainty, limitation periods must be fixed in advance (Marks & Spencer, paragraphs 35 and 39 and the case-law cited). 34 As regards the recovery of domestic taxes unduly levied, the Court has already held that a time-limit of three years under national law, calculated from the date of the contested payment, appears reasonable (see Case C‑228/96 Aprile [1998] ECR I‑7141, paragraph 19, and Case C‑255/00 Grundig Italiana [2002] ECR I‑8003, paragraph 34). Thus, a limitation period of six years, such as that applied to the Woolwich cause of action, which starts to run on the date of payment of the tax concerned, appears, in itself, to be reasonable. 35 Nor does the principle of effectiveness present an absolute bar to the retroactive application of a new period for initiating proceedings that is shorter and, as the case may be, more restrictive for taxpayers than the period previously applicable, where such application concerns actions for the recovery of domestic taxes contrary to EU law which have not yet been commenced by the time the new period comes into force but which relate to sums paid whilst the old period was still applicable (Grundig Italiana, paragraph 35). 36 Given that the detailed rules governing the recovery of national taxes unduly levied are a matter for national law, the question whether such rules may apply retroactively is equally a matter for national law, provided that any such retroactive application does not contravene the principle of effectiveness (Grundig Italiana, paragraph 36). 37 However, as the Court held in paragraph 38 of Marks & Spencer, whilst national legislation reducing the period within which repayment of sums collected in breach of EU law may be sought is not incompatible with the principle of effectiveness, it is subject to the condition not only that the new limitation period is reasonable but also that the new legislation includes transitional arrangements allowing an adequate period after the enactment of the legislation for lodging the claims for repayment which persons were entitled to submit under the previous legislation. Such transitional arrangements are necessary where the immediate application to those claims of a limitation period shorter than that which was previously in force would have the effect of retroactively depriving some individuals of their right to repayment, or of allowing them too short a period for asserting that right.’

[137]In Levez v T H Jennings (Harlow Pools) Ltd

[1999] ICR 521

the CJEU held that a time limit for presenting an equal pay claim breached the principle of effectiveness in circumstances where the employer had misrepresented the facts to the employee meaning that she was unaware that she had a claim and that the domestic legislation (at the time) provided no possibility of an extension of time. Section 130 of the Equality Act 2010 reflects the decision of the CJEU on this point.

[138]In Shirley Preston and Others v Wolverhampton Healthcare NHS Trust and Others and Dorothy Fletcher and Others v Midland Bank plc. the CJEU held that fixing the start of a limitation period of six months at the end of each of a succession of short contracts in the context of a stable employment relationship rendered enforcing the right to recognition of membership of an occupational pension scheme excessively difficult – see the passages quoted above and in particular para 68. Again Section 130 of the Equality Act 2010 displaces the ordinary 6 month time limit for equal pay claims reflecting this decision.

[139]Questions of effectiveness and equivalence were raised in Chief Constable of the Police Service for Norther Ireland & others v Agnew & others and that case contains a useful summary of the relevant principles relating particularly to equivalence are set out at paragraphs 50 through to 57. The extensive quotes set out in those paragraphs make it impractical to reproduce them here. The key points are as follows: 139.1. ‘The principle of equivalence is a qualification to the general principle of EU law that Member States have autonomy when it comes to setting the procedural rules governing how EU rights conferred on the citizens of the Union by EU enactments are to be enforced’. – para 50 139.2. That the following principles can be extracted from Levez v T H Jennings (Harlow Pools) Ltd: 139.2.1. ‘The principle of equivalence requires that the rule at issue be applied without distinction, whether the infringement alleged is of Community law or national law, where the purpose and cause of action are similar; and 139.2.2. However, that principle is not to be interpreted as requiring Member States to extend their most favourable rules to all actions brought, like the main action in the present case in the field of employment law. 139.2.3. In order to determine whether the principle of equivalence has been complied with in the present case, the national court - which alone has direct knowledge of the procedural rules governing actions in the field of employment law - must consider both the purpose and the essential characteristics of allegedly similar domestic actions. 139.2.4. Furthermore, whenever it falls to be determined whether a procedural rule of national law is less favourable than those governing similar domestic actions, the national court must take into account the role played by that provision in the procedure as a whole, as well as the operation and any special features of that procedure before the different national courts’. 139.3. ‘When comparing procedures available to a claimant, it was appropriate to consider whether an action before the tribunal would be simpler and, in principle, less costly’ – para 52 139.4. ‘there may be no similar action available in domestic proceedings for the purposes of the comparison’ para 56. In which case the principle of equivalence will have no bearing on any national procedural rules – see the judgment of Lord Clyde at paragraph 43 of Preston & Others v. Wolverhampton Healthcare N.H.S. Trust & Others and Fletcher & Others v. Midland Bank Plc

[2001] UKHL 5

(‘Preston No: 2) (which applied the ruling in that case of the CJEU). 139.5. ‘The court is not therefore driven to find the nearest comparison but to decide whether there really is a similar action to enforce the rights in question’ para 56 and quoting the judgment of Lord Slynn in Preston No 2 where he said: “... one should be careful not to accept superficial similarity as being sufficient. It is not enough to say that both sets of claims arise in the field of employment law, nor is it enough to say of every claim under article 119 that somehow or other a claim could be framed in contract.”

[140]It was conceded by the Police Officers in Agnew that the 3 month limitation period that applied where holiday had been taken but was underpaid did not infringe the EU principle of effectiveness – see paragraph 58. Whilst the Supreme Court was therefore not invited to adjudicate on the point it quoted Rewe-Zentralfinanz eG and it is clear that the court did not consider that the point was wrongly conceded.

[141]The issue of what domestic action was truly comparable to an EU right was central in the case of Totel Ltd v Revenue and Customs Commissioners

[2018] UKSC 44

. The following points may be extracted from the Judgment of Lord Briggs (with whom the other JSCs agreed): 141.1. ‘it is for the courts of each member state to determine whether its national procedures for claims based on EU law fall foul of the principle of equivalence, both by identifying what if any procedures for domestic law claims are true comparators for that purpose, and in order to decide whether the procedure for the EU law claim is less favourable than that available in relation to a truly comparable domestic claim. This is because the national court is best placed, from its experience and supervision of those national procedures, to carry out the requisite analysis’ – para 6 141.2. ‘the question whether any proposed domestic claim is a true comparator with an EU law claim is context-specific’- para 9 141.3. ‘The domestic court must focus on the purpose and essential characteristics of allegedly similar claims’- para 10 141.4. ‘Of particular importance within the relevant context is the specific procedural provision which is alleged to constitute less favourable treatment of the EU law claim. This is really a matter of common sense……… This is because it is no part of the purpose of the principle of equivalence to prevent member states from applying different procedural requirements to different types of claim, where the divergences in those procedural requirements are attributable to, or connected with, differences in the underlying claims.’ – para 11 Application of those principles.

[142]I shall deal with all potential claims despite the fact that I have held that Mr Somerville has elected to put his case on a particular basis. I consider this necessary for the following reasons. I may be wrong in my analysis of the scope of Mr Somerville’s claims in which case it may be useful for any appellate court to see what my conclusions would have been had I taken a broader view of his case. In addition it seems to me that in assessing whether domestic law provides an effective and equivalent remedy it is necessary to look at the remedies which are available and not only those which a claimant has sought to pursue. Refusal claims - effectiveness

[143]I shall deal firstly with a claim brought pursuant to Regulation 30(1)(a) of the WTR 1998 (‘a refusal claim’). As should be apparent from my reasons above I have concluded that this would be the only claim a worker could bring domestically where(1) the employer had refused to allow any annual leave and no leave was taken at all (precluding a claim under Regulation 16) and

(2) the employment relationship had not terminated (precluding a claim under Regulation 14).

[144]I have further concluded that it is not possible for a worker to bring a refusal claim through Section 27 of the ERA 1996. It follows that the sole route in those circumstances is through Regulation 30 and is subject to the time limit in Regulation 30(2) of the WTR 1998. That time limit is ‘within 3 months’ plus any extension of time relating to ACAS early conciliation. The time limit is subject to the strict ‘reasonable practicality’ test.

[145]For these purposes I am assuming that the Respondent is correct and that the time limit relates to each particular assignment. It was suggested that the time limit must run from the date of the assignment itself. I do not agree the wording of Regulation 30(2)(a) is that the time limit runs from ‘the date on which it is alleged that the exercise of the right should have been permitted (or in the case of a rest period or leave extending over more than one day, the date on which it should have been permitted to begin)’. The date of the assignment cannot be the date on which the right to leave should have been permitted because the worker cannot both work and take leave at the same time. It follows that the leave would have to be given at some other time. As it is annual leave the latest that the right should have been permitted is the same holiday year as the assignment. Calculating the last possible day in the holiday year would require knowing how many days of leave had accrued. These difficulties illustrate how difficult it is to treat every assignment as crystalising any rights under Article 7(1) as opposed to having regard to an employment relationship.

[146]The wording of Regulation 30(2) appears to presuppose that there has been a request to take leave. It is now clear that the burden is on the employer to put the worker in a position to exercise the right – see recently LB v TO Case no: C-120/21 CJEU. If the worker does not request leave because either they are unaware of the right or they know or believe that it will be refused what then is the date of the refusal?

[147]The date of the assignment cannot be the date on which the right to leave should have been permitted because the worker cannot both work and take leave at the same time. It follows that the leave would have to be given at some other time.

[148]The Respondent’s approach is to say that the rights engaged in this case accrue at the end of each assignment. I bear in mind that it is the Respondent’s case (which I have accepted) that Mr Somerville has not brought a refusal case. I need to decide for myself when the starting point would be in a refusal case where there was no express refusal but a failure to recognise the right to paid annual leave. One approach would be to say that at the end of any assignment the worker would know that there had been a refusal to permit annual leave. That may be the case but that does not fit well with the wording of Regulation 30(2) which presupposes that leave could be taken on a particular date.

[149]As it is annual leave, the latest that the right to annual leave should have been permitted is the end of same holiday year as the assignment. Calculating the last possible day in the holiday year would require knowing how many days of leave had accrued. These difficulties illustrate how difficult it is to treat every assignment as crystalising any rights under Article 7(1) as opposed to having regard to an employment relationship. Equally they illustrate how difficult it can be to fix the date from which the limitation period runs.

[150]As illustrated by the case law above, in order to comply with the principle of effectiveness, limitation periods need to be clear and certain. I find that the starting point in a case where the employer refuses to recognise the right to annual leave (at all rather than specific leave dates) is not certain.

[151]I have reached the conclusion that the absence of certainty about when any limitation period would start to run in a case on the present facts means that Regulation 30(1)(b) read with Regulation 30(2) does not provide an effective remedy for a breach of the rights afforded by Article 7(1).

[152]Certainty could be provided by the same approach as was taken by the CJEU in Preston and subsequently adopted in the Equality Act 2010 as the test for limitation for equal pay cases. The limitation period would expire 3 months after the termination of the stable employment relationship. There is no difficulty ascertaining when that date might be as those principles are well established in domestic law. That is not the only option in reading Regulation 30(2) of the Working Time Regulations in conformity with the requirement for an effective remedy. I did not understand the decision of the CJEU to say otherwise.

[153]I accept below that there is no difficulty whatsoever determining when the time limit starts running in a claim brought under Article 7(2) of the WTD 2003 and Regulation 14 of the WTR 1998. However, I consider that both domestically and under EU law there is a choice of causes of action. A worker may wish to pursue a refusal claim rather than a claim for a payment in lieu. Domestically, for the reasons I address above the remedies might not be the same. I conclude that the possibility of bringing a succession of claims pursuant to Regulations 14/30(1)(b) does not mean that there is an effective domestic remedy for a breach of Article 7(1) in a refusal case such as this one.

[154]I have said above this is not a case brought by Mr Somerville. In the circumstances, other than saying that I find that the uncertainty about the starting date of any limitation period breaches the principle of effectiveness I do not need to consider whether or how the WTR 1998 might be read to comply with the requirement to provide an effective remedy.

[155]For reasons I set out below I do not consider that a 3 month limitation period of itself breaches the principle of effectiveness where the right to arise at the conclusion of each assignment. It follows that in a case where there is a request and express refusal for a period of annual leave the starting point would be clear and the wording of Regulation 30(2) of the WTR 1998 provides a clear commencement date for any limitation period. Regulation 14/30(1)(b) of the Working Time Regulations 1998 - effectiveness

[156]I have found this is not a claim brought by the Claimant. The time limit for bringing a claim under Regulation 14 is three months from the date that the payment should have been made. There is no difficulty whatsoever fixing a starting date in respect of such a claim. It will be the date that payments are due.

[157]A 3 month limitation period where the starting point is clear would ordinarily not mean that there was not an effective remedy. In Rewe a shorter limitation period was not considered to breach the principle of effectiveness. The question for me is whether the fact that the Claimant worked on an intermittent basis makes any difference to that conclusion.

[158]Some support for the suggestion that there is a distinction to be drawn between the position of atypical workers such as the Claimant and those who have a single contractual relationship with their employers can be drawn from Preston. Ms Darwin KC suggested that the approach of the CJEU in that case can be distinguished on the basis that Preston was concerned with the recognition of past membership of pension schemes. I think she is partially right. One matter referred to the CJEU was the question of whether Section 2(5) of the Equal Pay Act 1970 as amended by the Occupational Pension Schemes (Equal Access to Membership) Regulations 1976. That did concern the question of retrospective membership and the domestic provisions limiting the jurisdiction to a period of two years prior to the presentation of a claim. However an additional question that the CJEU was asked to determine was whether the 6 month time limit for the institution of claims from the termination of the workers contracts was itself contrary to the principal of effectiveness. In the case of those workers on a single contract the answer given by the CJEU was no. However in the case of the workers with a succession of contracts the CJEU said that a 6 month limitation period running from the end of each contract was contrary to the principle of effectiveness as the worker would need to bring a succession of claims in order to include her full length of service.

[159]I accept that the decision of the CJEU in Preston in respect of the time limits under the Equal Pay Act 1970 does not mean it follows that the time limit in Regulation 30(2) makes it impossible or excessively difficult to enforce a right to payment under Regulation 14. However, it does give that proposition some support. I do accept Ms Darwin KC’s broader point that claims for recognition of past service for pension purposes are not the same as claims for holiday pay.

[160]I have noted above that in Agnew the Supreme Court appear to have recognised that a concession that a requirement to bring a claim for a shortfall of pay within three months of every holiday taken was not contrary to the principle of effectiveness was properly made.

[161]I would accept that there would be some real inconvenience in bringing a claim essentially every three months. That inconvenience is mitigated once it is recognised that the employment tribunal can grant permission to amend an existing claim to deal with facts that arise after the claim form is issued. Contrary to the stance taken by the Respondent when resisting the Claimant’s application to amend his claim such an application is permissible – see Okugade v Shaw Trust EAT 0172/05, Prakash v Wolverhampton City Council EAT 0140/06 and perhaps most importantly the Direction of the President of the Employment Tribunals in respect of claims in respect of the calculation of holiday pay Dated 27 March 2015. The fact that claimants could and did bring repeated applications to amend their claims strongly supports the position that it was neither impossible nor excessively difficult to do so.

[162]I do not accept a point tacitly made by Mr Somerville that the uncertainty as to who was or was not entitled to holiday pay made it excessively difficult to start a claim. That is particularly true of the Claimant who is a qualified barrister. Whilst I accept that cases such as Autocleanze and Uber which Mr Somerville has referred to have given some welcome certainty any lack or certainty did not preclude an earlier claim. If the construction workers in Byrne Brothers (Formwork) Ltd v Baird and others, Redrow Homes (Yorkshire) Ltd v Wright and Cotswold Development Construction Ltd v Williams were able to ascertain the possibility of claiming holiday pay in the early two thousands did not consider any legal uncertainty made claims within a short limitation period impossible or excessively difficult to being a claim for holiday pay then I cannot accept that it is any different for Mr Somerville. When Mr Somerville took up his position he knew he was not being given paid annual leave. He had knowledge of all material facts at all times.

[163]I have regard to the fact that many domestic employment rights are subject to the same short limitation period (i.e. unfair dismissal). Time limits for bring appeals to the Employment Appeal Tribunal which are strictly enforced are even shorter.

[164]The necessity for repeated claims (or amendment) where there is a consistent denial of rights is the strongest point that is made in support of an argument that a three month limitation period commencing on the day holiday pay was due makes enforcing those rights excessively difficult. Overall I am not persuaded that the need for repeated claims or amendments where makes enforcement of the rights afforded by Article 7(2) impossible or excessively difficult. Regulation 16/30(1)(b) of the Working Time Regulations 1998 - effectiveness

[165]In terms of effectiveness there is no material distinction to be made between a claim relying on regulation 14 and one relying on Regulation 16 brought through regulation 30(1)(b) or the WTR 1998. Mr Somerville knew when he took time off work, and he knew he was not getting paid annual leave. I repeat my reasoning above as to why I have concluded that the requirement to being successive claims did not make the enforcement of his rights impossible or excessively difficult. Effectiveness in the light of Section 13 ERA 1996

[166]For a claim that there has been a failure to pay sums due for holidays taken (Regulation 16) or accrued but untaken at the termination of the employment (Regulation 14) Section 13 ERA 1996 provides an alternative route for enforcing breaches of Article 7 WTD 2003. The two procedural rules restricting such claims are(1) that a claim must be brought within 3 months of the last of a series of seductions and

(2) that recovery is limited to deductions made in the two years before a claim is presented.

[167]Whilst the WTR 1998 are the primary vehicle for transposing the WTD 2003 into domestic law I consider that where domestic law provides more than one remedy for a breach of EU law the question of whether there is an effective remedy must take that fact into account. In FII Group Litigation v HMRC Case C‑362/12 the CJEU accepted that where domestic law provided two different causes of action in respect of the same loss a retrospective change to the limitation period in respect of one cause of action after the action had commenced breached the principle of effectiveness. It was not material that there was another route to the same remedy. I consider that that position can be distinguished in the present case. Here the cause of action is identical. The right to payment for holidays taken or accrued is provided by the WTR 1996 and not Section 13 of the ERA 1996. All Section 13 provides is a means of enforcement. In those circumstances I consider that the question of whether there is an effective remedy for a breach of Article 7 in a non-payment case needs to take account of the more favourable regime in Sections 13 and 23 of the ERA 1996.

[168]It follows inevitably from my conclusions that a 3 month time limit for each infringement of the duty to pay for holidays taken or accrued does not make it impossible or excessively difficult to enforce a claim that I conclude that the more generous regime provided for in Sections 13 and 23 of the ERA 1996 do not do so either. Retrospective removal of rights

[169]I need to deal with an argument advanced by Mr Somerville that the introduction of the Section 23(4A) ERA 1996 is unlawful because it retrospectively removed an existing EU right. Mr Somerville’s submissions prepared before the hearing suggested that having brought his claim Brexit Completion Day any rights he had under EU law were preserved. He says that as a consequence Section 23(4A) could not cut down those rights. He goes on to say that in the light of King and Smith his rights accumulated in any event. I consider that Mr Sommerville’s submissions to be slightly confused. I have dealt with the effects of King and Smith above. I have accepted that where there is a refusal of an employer to afford access to paid annual leave then that right accrues before any national procedural rule results in the loss of that right. That does not deal with the question of, whether if the rights crystallised each time an assignment ended, Section 23(4A) provided a lawful backstop of 2 years. Mr Somerville appeared to say that such a result would be unlawful because he would lose rights which he could otherwise have enforced.

[170]I consider it clear that it is open to a member state to introduce a new limitation period. That can include bringing in a backstop where none previously existed. The limitations on a state’s ability to do so are those set out above in the CJEU decision in FII Group Litigation v HMRC Case C‑362/12. Mr Somerville’s point that the effect of the introduction of Section 23(4A) of the ERA 1996 deprives him of rights he could otherwise have enforced is dealt with at paragraph 36 which I have quoted above. Such a change is lawful providing that the new limitation period is fixed in advance of the claims brought, reasonable in length, certain and does not breach the legitimate expectations of those holding the relevant rights. There will be a breach of legitimate expectations unless there is a reasonable transitional arrangement.

[171]The Deduction from Wages (Limitation) Regulations 2014 were made on 17 December 2014, laid before Parliament on 18 December 2014 and came into force on 8 January 2015. They include a transitional provision at Regulation 4 which provides that: ‘The amendment made by regulation 2 only applies in relation to complaints presented to an employment tribunal on or after 1st July 2015.’

[172]It follows that employees who wished to rely on a series of deductions from wages had a 6 month transition period to present any claim to the employment tribunal.

[173]I conclude that the introduction of a new limitation period did not breach any of the principles that were discussed in FII Group above. The UK was entitled to introduce a new limitation period even where it would prevent a worker from enforcing rights that had she/he held and could have enforced under the existing legislation provided that the new limitation period was reasonable and that there was a reasonable transition period.

[174]I do not consider that it is open to me to say a two year backstop on claims can be said to be unreasonable when introduced in 2015. The Government made no secret of the reasons for introducing the backstop. It was a response to the decision of the Employment Appeal Tribunal in Bear Scotland Ltd v Fulton

[2015] IRLR 15

which as at the time the latest in a line of cases that had held that a worker’s holiday pay must include her/his normal remuneration. The explanatory note to the regulations makes it clear that the Government intend an ‘adjustment’ to the national rules for the enforcement of rights deriving from the WTD 2003. The impact assessment produced at the time makes it plain that a significant concern was that businesses were being faced with latent claims unlimited in their historic extent.

[175]It is not for me as a judge to adjudicate on the balance struck by Government between the rights of workers and their employers. What I must do is ask whether the balance that was decided upon meant that there is now no effective remedy for a breach of EU law through Section 13. I am unable to say that.

[176]The changes were introduced with a formal transition period of 6 months. Workers with accrued rights could present their claims within that window and recover the full extent of their rights. The changes to the law were clear and transparent. Any worker could have learned of the changes without difficulty. I consider a transition period of 6 months was a sufficient period to deal with any legitimate expectation by a worker that they would be able to bring historic claims.

[177]For these reasons I find that the changes to the limitation period were in accordance with the lawful approach delineated by the decision of the CJEU in FII Group. The changes were introduced after a reasonable transition period and well before Mr Somerville presented his claim. That transition period allowed an adequate period to deal with historic claims. The changes introduce a limitation period which is reasonable as it permits aggrieved workers to bring any successive claims at two year intervals.

[178]In conclusion I do not consider that it was impossible or excessively difficult for Mr Sommerville to have brought claims that would have encompassed the entirety of his service for the Respondent. He did not do so before 1 July 2015 and accordingly if his rights had not accrued as I have found they did he would have lost the right to any period prior to 2 years before the claim was presented. Equivalence

[179]The principle of equivalence is tied up with but is distinct from the principle of effectiveness. A right may be effective but if it is not equivalent to a similar domestic right then it will not be in accordance with EU law.

[180]Given my conclusion that the Claimant has not brought a refusal claim and my conclusions about whether there is in domestic law an effective remedy for such a claim I shall not reach a firm conclusion about the issue of equivalence in respect of such a claim. An appellate court is as well placed as I am to identify a similar claim in domestic law. I should say that I consider that such a claim is very different from a claim for liquidated damages. I note that the first remedy identified in Regulation 30(3)(a) is a declaration. This is a mandatory remedy where there is any breach. That in my view reflects the purpose of the claim. It is to seek to compel the employer to comply with the requirement to grant periods of rest from work. I consider that a very different claim to one seeking financial compensation. Were I to undertake the exercise I would certainly consider whether the rights provided by Section 57A (time off for care for dependants) which does not derive from EU law but provides declaratory relief and just and equitable compensation is an appropriate similar right. That right is subject to a strict 3 month time limit no different to regulation 30. It seems to me that the substance of the right is time off for the (indirect) wellbeing of the worker. No doubt there are other candidates.

[181]It seems to me that given my conclusions above I should ask whether the procedural limit in respect of claims founded on Regulation 14 and 16 of the WTR 1998 brought through Section 13 ERA the 3 month limitation period together with the 2 year backstop claim satisfy the principle of equivalence.

[182]The first step is to identify a similar claim in domestic law. In doing so I must apply the principles above.

[183]In Stringer the similar claim that was identified in domestic law to a claim for accrued holiday pay was a claim for breach of contract at common law arising from a failure to make payments for holiday entitlement. At the time such claims could be brought through Section 13 of the ERA without any backstop.

[184]The Deduction from Wages (Limitation) Regulations 2014 amended regulation 16 of the Working Time Regulations to make it clear (if it had not been already) that regulation 16(1) – the right to payment – did not confer any contractual rights.

[185]The effect of the introduction of Section 23(4A) of the ERA 1996 is that a claim for contractual holiday pay is subject to the same rules on time limits as a claim that derives from the rights conferred by the WRD/WTR 1998. They are both limited to a series of deductions in the 2 years before the claim is presented.

[186]Section 23(4A) only applies to claims that fall within the definition of wages contained in Section 27(1)(a) namely ‘any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise’. The other definitions of wages are excluded from the additional limitation of a 2 year backstop.

[187]In order that a claim might be made for wages through Section 13 there must be some legal right to the payment – see New Century Cleaning Co Ltd v Church

2000 IRLR 27

, CA. The effect of the legislation as it stands is that whilst wages that fall within the definition of wages set out at Section 27(1)(a) will all be subject to the two year backstop the only claim that could not be presented in the civil courts is holiday pay derived from the WTD 1998. If the worker is an employee all claims for breach of contract (which is likely to be the entirety of the other wages claims) might be brought in the employment tribunal after termination of the employment contract under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. The right with ‘nowhere else to go’ is the WTD 1998 holiday pay claim.

[188]As I am reminded by the authorities I have cited above I need to ‘take into account the role played by that provision in the procedure as a whole, as well as the operation and any special features of that procedure before the different national courts’ – Levez. Special care needs to be taken in comparing a claim brought in the Employment Tribunal to a potential remedy from the civil courts - see Preston when the case returned from the CJEU

[2001] 2 AC 455

[189]I accept that it remains the case that a claim for contractual holiday pay remains the most obvious claim of a similar nature to a claim derived from the WTD 2003. If a claim for contractual pay was brought by a worker, as opposed to an employee, then if the claim was brought through Section 13 then it would be subject to the same backstop. It could not be brought under the Extension of Jurisdiction Order. There would be the option of a county court claim with the downsides of a more formal procedure, court fees and depending on the allocation of the claim the risk of costs. Also, with the greatest respect for the judges of the county court, employment judges are specialists in their field.

[190]Taking these matters in the round I do not think that the fact that there is a possibility of bringing a county court claim in respect of arrears of pay exceeding the two year backstop in the County Court means that the right afforded through Section 13 of the ERA to bring a claim for holiday pay is less favourable to the rights afforded in breach of contract claims for a worker. The route through the County Court is significantly more arduous than a claim brought under Regulation 13/23 of the ERA 1996. The necessity to bring such a claim could have been avoided by issuing a claim during the transition period or subsequently by bringing claims at 2 year intervals.

[191]I do not think that the position is any different because an employee can bring a claim under the Extension of Jurisdiction Order. The right to bring such a claim is limited to employees and to claims outstanding or arising upon termination of the contract. There is no right to bring a claim in the currency of employment. A feature of a claim under the Extension of Jurisdiction Order is that it opens the door to counterclaims by the employer.

[192]I have therefore concluded that whilst a breach of contract claim for holiday is a similar claim for the purposes of the comparison whilst there are differences between the available routes to enforcing such claims the regime available to the enforcement of the EU derived WTD 2003 claims is no less favourable than the domestic claims. The fact that it used to be treated more favourably through the unamended Section 23 ERA 1996 is neither here nor there. Both EU and Domestic rights have for been eroded through those changes. The overall picture is not one of less favourable treatment for the EU derived claim.

[193]Whilst Mr Somerville did not attempt to identify any other similar claims which might lead to a different conclusion I consider that I should ask myself whether any domestic claims excluded from the new limitation periods are sufficiently similar as to breach the principle of equivalence. The claims in Section 27(1)(b) - (j) are not affected by the new limitation period. Some of those claims derive from EU law in whole or in part. Those would not form the basis of a comparison because the comparison needs to be between an EU claim and a domestic claim. There are domestic claims for payment in respect of time off work in those sub-sections. That gives some superficial similarity to an EU holiday pay claim. However I am reminded that superficial similarity is not enough. I do not think it possible to equate annual leave with say time off for adoption or bereavement. Having raised the possibility of other claims for comparison purposes I have not identified any that are any more then superficially similar.

[194]It follows that I have come to the conclusion that the procedural regime introduced by Section 23(4A) does not offend against the EU principle of equivalence. It follows that I do not need to consider whether I need to strike down that legislation.

[195]I have reached this conclusion without mentioning the first instance decision of my colleague in the case of Battan v Lloyds Bank plc & Ors. Having conducted my own analysis I have come to the same conclusion. It is not necessary that I review the reasoning in that case. As Mr Somerville urged upon me this is a first instance decision and the reasoning is not binding upon me. Conclusions if I am wrong about the scope of Article 7(1)/King/Smith

[196]If I have gone wrong when I concluded that the directly enforceable effect of Article 7(1) means that Mr Somerville was entitled to carry over the right to paid annual leave up to the point it was recognised, or the employment relationship ended then it follows that I would have found:

[197]That any claim under regulation 16 and brought through Regulation 30(1)(b) of the WTR 1998 was limited to days of holiday taken in the months prior to the claim being brought (with any ACAS adjustment); and

[198]That any claim brought under Sections 13/23 of the ERA 1996 was limited to any series of deductions in the two years preceding the presentation of the claim. Other remedy matters

[199]The Claimant had raised as an issue the question of whether the effect of the decision in Harpur Trust v Brazel

[2023] 1 CMLR 18

was that he was entitled to payment equivalent to 5.6 weeks holiday per year. His schedule of loss that accompanied his submissions suggested that he believed that the effect of that decision was that he was entitled to 5.6 x his daily rate x 5 working days per annum. This is despite the fact that on average he worked for a great deal less in each year of his claim.

[200]I did not understand Mr Somerville to pursue this point in his oral submissions. Insofar as the point was not expressly abandoned it is sufficient for me to say that it is not a good point. Whilst not spelt out expressly the principle of pro rata temporis clearly applies to the calculation of any entitlement to leave. That is implicit in expressing the entitlement in weeks.

[201]A further matter raised in the list of issues is the extent to which the decisions in King and Smith apply to the leave that should have been granted under Regulation 13A of the WTR 1998. Mr Somerville conceded at the hearing that those decisions do not apply to any claim to the 1.6 weeks annual leave afforded by Regulation 1.6.

[202]It follows that the only claims that are in time in respect of the Regulation 13A claims are those brought within the time limits specified in Section 23(4A) of the ERA. It is for Mr Somerville to choose the most favourable remedy and he is entitled to advance those claims as they are clearly within the scope of his claim.

[203]The parties suggested that subject to my findings on the points above any issues of mathematics might be resolved between them. If it is of assistance I would say that Assuming that the Respondent accepts that there was a stable working relationship throughout the period the entitlement to the sum due to the Claimant is 12.07% of his total remuneration from the Respondent.

[204]In his submissions Mr Somerville has made an application for a preparation time order. I did not hear any submissions on that and have not decided it. However, if this is to be pursued Mr Somerville will have to bear in mind that the Respondent’s position in respect of his employment status was considered to be properly arguable up to the Court of Appeal. His complaints about matters put to him in cross examination do not appear to form a very strong basis for a costs application. It is a matter for Mr Somerville whether he pursues this any further. He has also suggested that he should be awarded interest. He made no submissions on this point, and it is premature to decide this until Mr Somerville elects which statutory provisions he brings his claim under. I would point out that neither statutory provision refers to interest per se. Mr Somerville might wish to have regard to Section 24(2) of the ERA 1996. At present he has not established that any delay in payment caused any consequential loss.

[205]I ask that the parties write to me within 28 days setting out any remaining areas of dispute or hopefully agreeing the award that should be made to Mr Somerville. Answers to the matters included in the list of issues

[206]Conscious that I have dealt with things in a different order to the agreed list of issues I provide the following summary: 206.1. Issue 1 – Decided by REJ Burgher – the Claimant had not brought a claim relying on Regulation 14 of the WTR 1998; and 206.2. Issue 2 – The Respondent conceded that the Claimant did not need to show that he had taken holiday on specific dates. 206.3. Issues 3-5 there is no claim relating to pension – conceded by the Claimant 206.4. Issue 6 – Decided by REJ Burgher – the Claimant was not permitted to amend his ET1 to bring claims arising after the presentation of the ET1 206.5. Issue 7 – does not require a determination – it is agreed that the Claimant’s claims is brought as individual deductions from wages predate the backstop imposed by Section 23(4A) ERA 1996. 206.6. Issue 8 – See below: 206.6.1. I have held that the rights given by Article 7(1) of the WTD 2003 subsist throughout the employment relationship; and 206.6.2. I have held that applying the reasoning in King and Smith the right to payment for holiday taken but unpaid continued to accrue until recognised by the employer, termination of the employment relationship or determination by the Tribunal; and 206.6.3. As a consequence, the claim was brought within the time limit imposed by Regulation 30(3) WTR 1998. 206.6.4. Accordingly the Claimant is entitled to claim the entirety of the holiday pay that he ought to have received had the Respondent recognised his right to paid annual leave. 206.7. Issue 9 – see above. 206.8. Issue 10 – Yes the Tribunal can consider the complaint brought under Regulation 30 WTR 1998 206.9. Issue 11 – There was no Regulation 14 claim. 206.10. Issue 12, 13 & 14 what was the date of termination – I have held that the rights accrued until the end of the employment relationship. That is the date upon which the agreement about the terms that would apply if work was done expired. In any event it was after the claim was presented. 206.11. Issue 15 – There was no Regulation 14 claim 206.12. Issue 16 –(1) the Claimant is entitled to 4 weeks holiday per annum prorated for the entirety of his service; and

(2) He is entitled to a further 1.6 weeks holiday, pro-rated, for the two years preceding the presentation of his claim. 206.13. Issue 17 – The parties agreed that this is a matter they could resolve – I have made no determination how often the Claimant worked for the Respondent. 206.14. Issue 18 - Harpur Trust v Brazel has no bearing on the issues I needed to decide the principle of pro rata temporis applies to the accumulation of a right to annual leave. 206.15. Issue 19 – I have found that the Claimant had not brought a claim under Regulation 30(1)(a) and therefore he is not entitled to any remedy under Regulation 30(3) WTR 1998. 206.16. Issue 20 – The Claimant concedes that he brought no pension claim. 206.17. Issue 21 – No submissions were made on these points, and I have made no decision. Parting remarks

[207]I apologise for the delay in providing this decision. The parties provided me with a great deal of material and much food for thought. I have been engaged in several other cases in the meantime and have not had as much time as I might have liked to complete this task. That said I am very sorry it has taken so long.

[208]The judgment is long and may have typing mistakes. If the parties would like these to be corrected please let the tribunal know and a certificate of correction can be completed. If I have failed to deal with any material part of the case then the parties should ask me to reconsider any decision.

[209]I thank the parties for their assistance with this difficult case. Employment Judge Crosfill Dated: 9 April 2024 List of Issues The issues the Employment Tribunal will be asked to decide at the final hearing are as follows. Nature of Claims

Findings of fact

[1]The Claimant accepts that his pleaded claim was brought under 16 WTR and asserts his 16 WTR claim was the right claim at the time it was made in July 2018 and continued to be so through to 2020 when he received his last payment and/or when his umbrella contract terminated in April 2020. Can the Claimant now extend his claim to be considered in the alternative under Regulation 14 without seeking leave to amend his ET1/ Grounds of Complaint or being granted leave? ET Decision: The Claimant cannot pursue a Reg 14 WTR and his application to amend to advance such a claim is refused.

[2]In order for a claim under 16 WTR to succeed is the Claimant required to show that he actually took holiday and the dates on which he did so? The Respondent concedes that the Claimant is not required to show that he actually took holiday and the dates of holiday to succeed for this issue. Pension Claim

[3]Does the ET have jurisdiction to consider the pension claim set out in the following paragraph, and if so pursuant to what statutory provision? The Claimant concedes that the ET does not have jurisdiction to consider the pension claim.

[4]Was the Respondent required to: i. enroll the Claimant into a pension scheme and/or ii. provide the Claimant with certain required information about the scheme iii. and/or make contributions into a pensions scheme for the benefit of the Claimant?

[5]Have such claims been pleaded and if not, should the Claimant be granted permission to amend his claim to include them? The Claimant concedes that pension claims have not been pleaded and no application for amendment to add a claim has been made. Events After ET1 Presented

[6]Does the Employment Tribunal have jurisdiction to consider any claims the Claimant is now making (by way of his Schedule of Loss) for holiday pay in respect of the period after the Claimant presented his ET1 (i.e. the period after 20 July 2018). ET Decision: The Tribunal’s jurisdiction is limited to claims brought by the Claimant in respect of matters that arose on or before the presentation of his ET1 on 20 July 2018. Unlawful Deduction of Wages Claim

[7]The Claimant is also pursuing his claims for statutory holiday pay pursuant to s.23 of the Employment Rights Act 1996. It is agreed that the Claimant's claim in part relates to deductions where the dates of payment of the wages from which deductions were made were before the period of two years ending with the date of presentation of the complaint. (Two years ending on 20 July 2018).

[8]Is the ET prevented from considering that part of the Claimant's complaint under s.23(4A) ERA 1996? (1) In particular, what is the impact of the CJEU’s judgment in Sash Windows and/or Smith v Pimlico Plumbers

[2022] EWCA Civ 70

and/or the WTD 2003 on the two year backstop contained at s.23(4A) ERA 1996?

[9]In relation to any remaining claims for statutory holiday pay that the ET has jurisdiction to consider:(1) Is the claim for statutory holiday pay a valid one?

(2) If so, was the Claimant required to present it before the end of the period of three months beginning with the date of payment of the wages from which the deduction was made (in circumstances in which the Respondent did not admit that he was a worker)?

(3) If so, was it presented before the end of the period of three months beginning with the date of payment of the wages from which the deduction was made? (a) The Claimant says that the last of a series of deductions occurred on 10 January 2020.

(4) Or, is the Claimant’s complaint a complaint in respect of a series of deductions or payments within s.23(3) ERA 1996?

(5) If so, was the Claimant’s complaint presented before the end of the period of three months beginning with the last deduction or payment in the series? Time Limits and Jurisdiction

[10]Pursuant to Regulation 30(2) of the WTR 1998, can the ET consider the Claimant’s WTR 1998 complaint?

[11]Was the Claimant required to present any claim under Regulation 14 before the end of the period of three months, beginning with the date of termination. When was the date of termination?

[13]The Respondent’s position is that it was the last day that the Claimant sat on the FtP Committee prior to presenting his claim.

[14]The Claimant’s position is that termination occurred on or after 10 January 2020 when he received his last payment or when the overarching contract between the parties came to an end in April 2020.

[15]Following on from issues 10 to 13 above, did the Claimant present his claim within the period of three months from the date of termination and if not, should he be granted permission to amend his existing claim to include a claim under 14 WTR? QUANTUM

[16]Is the Claimant entitled to claim for:(1) The pro-rated equivalent of 20 days statutory holiday? Or

(2) The pro-rated equivalent of 28 days statutory holiday?

[17]In what way, if at all, is the attached Schedule 1 of the Claimant’s sittings, disclosed by the Respondent, inaccurate? In what way, if at all, is the attached Schedule 2 of the Claimant’s sittings comprising of those in Schedule 1 and subsequent sitting days inaccurate?

[18]What was the Claimant's pro-rated entitlement to holiday for each leave year and what effect does:(1) the case of Harpur Trust v Brazel; and

(2) the judgment that the Claimant is only a worker for the periods when he is actually sitting under an individual contract, have on the amount of holiday to which the Claimant is entitled and the way that his holiday pay should be calculated? Subject to issue 1 above, how much statutory holiday pay is due to the Claimant under Regulations 14 or 16 and 30(1)(b) WTR 1998? What declaration should the ET make in relation to Regulation 13 WTR?

[19]Should the ET make an award of compensation to be paid by the Respondent to the Claimant under Regulation 30(3)(b) WTR 1998 as well as, or instead of any other award? If so, what should that award be?

[20]Subject to issues 2, 3 and 4 above what compensation is the Claimant entitled to in respect of the Respondent’s failure to: i. provide the Claimant with the required pensions information? ii. make contributions into a pension scheme for the Claimant’s benefit? iii. provide the Claimant with the ability to make his own pension contributions?

[21]What award if any should be made to the Claimant in respect of: i. interest relating to any substantive award made; and/or ii. witness expenses; and/or iii. preparation expenses.