Hello everyone and thank you for joining us for another case of the week. Last week, we looked at a claim for race discrimination and unconscious bias. For anyone that missed it, you can find that case here.

This week, we are looking at employment status involving a claim by a volunteer against a coastguard charity for failing to allow them to be represented by a trade union during a disciplinary hearing. ONS figures suggest that over 9 million people volunteer more than once a month and volunteering leave has been a much touted issue over the past few years.  Volunteering and employment law seldom mix as by definition one would assume a volunteer is not an employee. However, can a volunteer be a worker?

The Claimant, Martin Groom, was a volunteer for the Respondent, Maritime and Coastguard Agency. The Respondent consists of approximately 108 paid staff and 3,500 volunteers. The Claimant volunteered as a Coastal Rescue Officer (CRO) from 1985, and then as a Station Officer from 2011.

Whilst volunteers were not normally paid, the Respondent did have a Volunteer Handbook which specified circumstances were volunteers might be paid for callouts at unsociable hours or for disruption to personal/professional responsibilities.  If a volunteer were to make a claim for payment the Respondent would pay this via payroll with each volunteer receiving a P60 itemising all pay in the financial year.

The Claimant was invited to a disciplinary hearing on 15 May 2020. The Claimant’s membership with the Respondent was terminated with immediate effect during that meeting and the Claimant’s appeal was rejected. A P45 was issued which confirmed that the Claimant’s leaving date was 8 September 2020.

As the Claimant was not an employee the claim was not for unfair dismissal, the issue arose around whether the Claimant was a worker as defined under section 13(1)(a) of the Employment Relations Act 1999, referred to as a ‘Limb (b)’ worker. If he was, he was entitled to be represented by a trade union official during his disciplinary hearing. The Respondent’s position was that he was not, so had denied him having representation.

The Tribunal examined the Respondent’s Volunteer Handbook. In particular it noted the ‘The Volunteer Commitment’ and ‘Payment’ sections. ‘The Volunteer Commitment’ section included an obligation for volunteers to comply with the Code of Conduct, attend training events and emergency call outs, and comply with all instructions and activities. The ‘Payment’ section included the following wording: ‘You can submit monthly claims for payment for certain activities if you wish, although some CROs choose not to. This money is to cover minor costs caused by your volunteering and to compensate for any disruption to your personal life and employment, plus for unsociable hours call outs.’

The Tribunal found that the Claimant was not a worker because no contract existed between the two parties. The central dispute was about the interpretation and effect of the Volunteer Handbook. The two primary questions that the Tribunal considered were:

  1. Is it necessary to imply a contractual relationship?, and,
  2. If there was a contractual relationship, was it such that the Claimant could be classified as a worker?

The Tribunal’s decision, in finding that the Claimant was not a worker, was based on four factors. These were:

  1. The agreement describing itself as a voluntary agreement,
  2. There was no ‘automatic’ remuneration and many volunteers never made any claims,
  3. The degree of control did not appear to be ‘particularly significant’, and
  4. The fact that HMRC had performed an investigation and determined that the CROs were not workers. The Employment Tribunal dismissed the claim. The Claimant appealed to the Employment Appeal Tribunal.

The EAT considered various aspects of the relationship between the two parties. One of the central points, however, was that of remuneration. The EAT found that the fact that remuneration was not automatic, had to be applied for, and that many CROs did not apply for remuneration was not relevant to the decision to determine whether there was an inherent right to remuneration. The Respondent drew a clear distinction between expenses claims and remuneration claims, which tended to show that the payments were not simply for the reimbursement of costs incurred in the performance of the Claimant’s duties.

As the Claimant had a right to claim remuneration, regardless of whether he exercised that right, he should therefore be correctly classified as a worker. The EAT allowed the Claimant’s appeal. However, the claim was remitted back to the Tribunal to determine whether the Claimant was a worker when attending the disciplinary hearing, and, if he was, what remedy would be appropriate.

Takeaway Points

The key principle to bear in mind when dealing with cases like this is the famous case of Street v Mountford [1985]. In Lord Templeman’s judgment, he stated that ‘the manufacture of a five pronged implement for manual digging results in a fork, even if the manufacturer, unfamiliar with the English language, insists that he intended to make and has made a spade’.

Here, we can see an agreement where a person was entitled to remuneration upon the completion of specified tasks. The underlying relationship was that the Claimant could perform tasks and be entitled to remuneration as a result. Even if the organisation insists that this was a ‘voluntary’ arrangement, the EAT determined that the Claimant was in fact a Limb (b) worker entitled to the legal protection that status affords, including a right to union representation. The fork returns from being a spade to a fork again, but only on appeal!

What is also worth noting is that a breach of Section 13 of the Employee Relations Act 1999 is limited to a maximum of two weeks pay (subject to statutory cap) per breach. Typically, awards range from £200-400 and the maximum award for a case like this is £1,400 (at the current rate). Given the matter has now had a full ET hearing, an appeal and likely subsequent tribunal to determine outstanding issues, it does beg the question of whether it would have been easier and more commercially prudent to explore settlement!