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February 25, 2022

The cases of Fentem v Outform EMEA Ltd [2022] UKEAT 32 and Nursing and Midwifery Council v Somerville [2022] EWCA Civ 229 were handed down on Friday 25th February 2022.


This case was about the employment status of chairs of the NMC’s Fitness to Practice Committees. Mr Somerville had been found by the Employment Tribunal to have been a worker for the NMC, but not an employee.

The NMC had appealed on the basis that an “irreducible minimum of obligation” was necessary for worker status. In effect that there was a need for an obligation on a claimant to perform a minimum amount of work, in order for a contract to be a worker’s contract. The Court of Appeal (Moylan, Lewis and Elisabeth Laing LJ) rejected the appeal stating (per Lewis LJ):

“Each time the Council offered a hearing date, and the claimant accepted it, he agreed to attend that hearing and the Council agreed to pay him a fee. By those individual agreements…the claimant “agreed to provide his services personally”…The employment tribunal went on to find that the Council was not the client or customer of a profession or business carried on by the claimant. Those findings were sufficient to entitle the employment tribunal to conclude that the claimant was a worker in that he entered into (and had worked under) a contract whereby he undertook to perform services personally for the respondent and the respondent was not a client of his business or professional undertaking. There is no need, and no purpose served, in seeking to introduce the concept of an irreducible minimum of obligation in the way defined by the respondent.”

The case will return to the Employment Tribunal in due course for compensation to be determined.

Matt acted for Mr Somerville (led by Jeffrey Jupp of 7BR), instructed by Mike Cain of Leigh Day


Mr Fentem worked for Outform EMEA Ltd (and a number of predecessors under a series of employment transfers) until he resigned on the lengthy notice required by his contract of employment. There was also a right under that contract for the employer to make a payment in lieu of notice (“PILON”) at any time during that notice period.

In the Tribunal, the Respondent successfully argued, relying on the case of Marshall (Cambridge) Limited v Hamblin [1994] IRLR, that where an employer had properly relied on a PILON clause in the circumstances of this case, all that had changed was the date of termination and that was still by resignation. The fact that a dismissal is defined as including where “the contract under which he is employed is terminated by the employer (whether with or without notice)” does not, it was argued, apply to this kind of case.

Matt argued on appeal to the EAT that Marshall v Hamblin was wrongly decided. HHJ Auerbach in his judgment said:

“I am bound, with great respect, to say that I cannot see how anything in the reasoning [of the majority in Marshall v Hamblin] along the way supported their “no dismissal” conclusion… I also agree with Mr Jackson that the majority were wrong to regard the case as involving a waiver by the employer, and wrong to see section 49 [of the Employment Protection (Consolidation) Act 1978 as a source of comfort. The employer did not accede to a request by the employee to release him early. The majority’s discussion under the heading “commission” also seems to me have cast no light on whether there was a termination by the employer in that case; nor did the proposition that the EAT was not bound by the employer’s concession of wrongful dismissal; nor did the proposition (though true, as such) that it is not the case that any (that is to say, every) termination during a period of the employee’s notice will amount to a dismissal.

Having, after considerable reflection, come to the conclusion that I cannot say that these points are obviously not reasonably arguable, I am driven to the conclusion, despite my misgivings about the substantive reasoning in the decision itself, that the proposition of law which, it was common ground before me, emerges from Marshall v Hamblin, is not one that I can say is manifestly wrong. I have therefore concluded that I cannot depart from it on this point; and I will therefore refrain from considering these lines of argument any further, or indicating how I would have decided the point had I considered myself free to do so. Resolution of it must be left to the Court of Appeal.”

A decision on permission to appeal is awaited from the EAT.

Matt was instructed by Nisha Patel of DLG Legal Services.


Matt Jackson