Lancashire and South Cumbria NHS Foundation Trust v Moon

JurisdictionUK Non-devolved
Neutral Citation[2024] EAT 4
Year2024
CourtEmployment Appeal Tribunal
Employment Appeal Tribunal Lancashire and South Cumbria NHS Foundation Trust v Moon [2024] EAT 4

2023 June 13; 2024 Jan 22

Ellenbogen J

Employment - Contract - Worker - Claimant appointed associate hospital manager by specialist mental health foundation trust - Claimant engaged to exercise statutory power to discharge patients - Whether “worker” - Mental Health Act 1983 (c 20), s 23(6) - Employment Rights Act 1996 (c 18), ss 43K(1), 230(3) - Equality Act 2010 (c 15), s 83(2)(a)

The claimant was appointed as an associate hospital manager by the respondent specialist mental health foundation trust, which provided services to those detained under the Mental Health Act 1983. The claimant contended that she was a “worker”, as defined by sections 43K(1) and 230(3) of the Employment Rights Act 1996, and that she was employed within the meaning of section 83(2)(a) of the Equality Act 2010, under a contract personally to do work. The respondent, however, contended that the claimant was one of approximately 30 individuals whom it engaged under section 23(6) of the Mental Health Act 1983 to discharge patients, as part of a panel of three or more persons, each of whom was neither an executive director of the board nor an employee of the trust; and that appointment as an associate hospital manager necessitated independence from the trust which was inconsistent, in principle and in practice, with the status of “worker” for which the claimant contended. An employment tribunal found that the claimant was a worker. The respondent appealed.

Edward Morgan KC (instructed by Hempsons LLP) for the respondent; William Young and Patrick Tomison (instructed directly through Advocate) for the claimant.

ELLENBOGEN J, dismissing the appeal, said that the claimant relied on Nursing and Midwifery Council v Somerville [2022] ICR 755, in which the Court of Appeal was concerned with whether an individual appointed as a panel member and chair of a Fitness to Practise Committee of a professional regulatory body, and who undertook hearings, was a “worker” within the meaning of regulation 2(1) of the Working Time Regulations 1998 (SI 1998/1833) (which was in terms materially similar to those of section 230(3)(b) of the Employment Rights Act 1996). Notwithstanding express contractual provisions to the effect that (1) Mr Somerville had the status of an independent contractor and that nothing in the agreement created a relationship of employer and employee, and (2) that nothing in the agreement...

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