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Background: There are three main categories of employment status which are employee, worker and self-employed. It is important to know how to categorise an individual’s employment status as this dictates their legal rights (and obligations). Employees have the most rights (but also the most responsibilities towards their employer) whereas the self-employed have the least.
Workers are somewhere in the middle and typically have fewer rights than employees. Section 230(3) of ERA defines a worker as an individual who works under:
Workers qualify for certain rights, including the right to the National Living Wage, paid annual leave and the right to be accompanied to disciplinary and grievance hearings.
In essence, how the employment status of an individual is decided depends on looking at the reality of how their relationship with the employer works in practice.
Facts: Mr Groom, the volunteer, was a ‘coastal rescue officer’ for the Coastal Rescue Service (the rescue service). The volunteer handbook described his relationship with the rescue service as a ‘voluntary two-way commitment where no contract of employment exists’.
Mr Groom (in common with all volunteers) was expected to comply with a code of conduct which, amongst other things, required coastal rescue officers to attend a number of training sessions and to maintain a reasonable level of attendance at incidents. The code of conduct also said that volunteers could submit monthly payment claims for certain activities to cover minor costs and to compensate volunteers for disruption to their personal life caused by unsocial hours call-outs. Payments included payment for time (at an hourly rate of remuneration), travel and expenses with a calculation of amounts payable for different specified things, at different rates for different roles. Payment was by payslip and P60s were issued at the end of tax year.
The rescue service terminated the relationship with Mr Groom following a disciplinary hearing (and he was subsequently issued with a P45).
Mr Groom brought a Tribunal claim on the basis that the rescue service had failed to allow him to be accompanied to the disciplinary hearing. To qualify for this right, the claimant needed to be classified as a ‘worker’.
As it was accepted that Mr Groom was required to personally perform his volunteer services (and the rescue service was not a customer or client) the only issue for the Tribunal to consider was whether a contract existed.
Tribunal decision
The Tribunal said that Mr Groom was not a ‘worker’ as he did not have a contract with the rescue service. This was because there was no automatic right to remuneration for any activity and, in reality, many volunteers never made claims.
Mr Groom appealed to the EAT.
EAT decision
The EAT allowed Mr Groom’s appeal. It said there was a contract in place when Mr Groom was carrying out activities that attracted a right of remuneration.
The EAT said that the phrase ‘two-way commitment’ in the volunteer handbook and the specified levels of training and attendance at incidents indicated some form of mutual obligation.
It was irrelevant that Mr Groom had to apply for the remuneration – this was no more than a payment mechanism and had no impact of the issue of his status. It was also irrelevant that other volunteers hadn’t made claims for payment.
The EAT returned the case to the Tribunal to decide whether a contract existed when Mr Groom carried out unpaid activities.
The EAT also clarified that there is no firm rule that a volunteer can never be an employee or a worker. The relationships are not mutually exclusive and whether a volunteer is a worker depends on the facts and circumstances of each case.
Implications: This decision is a useful reminder that Tribunals will look behind any labels attached to the relationships with staff. Using the term ‘volunteer’ does not provide any special legal status. Tribunals will look behind this (and the wording used in any supporting documents) to identify the genuine relationship.
Employers that use volunteers may want to consider their employment status and review how they deal with (and document) their relationship with them. That said, bear in mind the (better) news that worker status was only established in this case when the volunteer was carrying out certain activities for which he was given the right to payment.
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