Case update

Employment status of volunteers

The Court of Appeal recently upheld a decision by the Employment Appeal Tribunal (EAT) that found that a volunteer for the Maritime and Coastguard Agency’s (MCA) Coastguard Rescue Service (CRS) was deemed to be a ‘worker’ when he performed certain activities that entitled him to remuneration (read our previous update here).

This designation of a volunteer as a ‘worker’ is significant as this status entitles the individual to various enhanced employment rights and protections.

Employers who regularly engage individuals on a voluntary basis should therefore follow the recommendations set out in our key takeaways section below.

Background

Mr Groom was a volunteer for the CRS. He was asked to attend a disciplinary hearing and was not allowed to be accompanied by a trade union representative.

He would only have had those rights if he was a ‘Limb (b) worker’ for the purposes of s.13(1)(a) Employment Relations Act 1999 (ERA 1999) and s.230(3) Employment Rights Act 1996 (ERA 1996).

The definition of “worker” is “an individual who has entered into or works under:

  • a contract of employment, or
  • 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”.

Mr Groom brought a claim before the Employment Tribunal (ET), claiming that he was a ‘Limb (b) worker’ and subsequently had the right to be accompanied at the disciplinary hearing.

ET and EAT decisions

On 30 March 2022, the ET held that the agreement between the parties (in the form of a written Volunteer Handbook) was a “genuinely voluntary one” and therefore Mr Groom was not a worker. The ET dismissed the claim.

On appeal, the EAT overturned this decision and held that Mr Groom was, in fact, a worker.

Under the Volunteer Handbook, Coastguard Rescue Officers were entitled (but not obliged) to claim “remuneration for time, travel and expenses associated with specific activities undertaken whilst on authorised duty…”.

As such, the EAT held that a contract arose for the performance of services by Mr Groom when he attended an activity in respect of which he was entitled to remuneration. It was irrelevant that the Claimant had to submit a claim for payment and that many volunteers did not do so in practice.

The EAT did not reach a conclusion on worker status in relation to attendance at non-remunerated activities.

“Although the use of the word volunteer may suggest an absence of intention to create legal relations, “volunteer” is not a term of art, the legal status of all volunteers is not necessarily the same. Ultimately, whether or not there is a contract is determined from the documents as a whole.” (paragraph 111 of the EAT judgment)

Court of Appeal decision

The Court of Appeal dismissed the MCA’s appeal and confirmed the EAT’s finding that Mr Groom was a worker and should have received the statutory rights owed to workers.

The Court noted that the MCA’s remuneration document described payments to volunteers as “compensation for disruption to personal life and employment”. This supported the view that the payments were intended to be remuneration for the work carried out by Mr Groom.

The Court held that the absence of an obligation to attend work does not prevent an individual from meeting the statutory definition of a worker. It referred to the elements necessary to fulfil the statutory definition of a worker’s contract as set out in a previous case involving Uber:

  1. A contract under which an individual undertakes to perform work or services for the other party.
  2. An undertaking to perform that work or those services personally.
  3. A requirement that the other party is not a client or customer of a profession or business carried on by the individual.

The Court accepted that the absence of payment may be a strong indicator that a person is a pure volunteer but confirmed that this point alone is not conclusive of the relationship between the parties.

The Court further held that once a volunteer agreed to serve the MCA on the terms set out in the MCA’s documentation, there was a clear intention to create legal relations. Although the MCA repeatedly stated in its documents that volunteers were not paid and that the relationship was therefore voluntary, the Court held that this did not reflect the reality of the wage-work bargain in place.

The Court also noted that, although MCA volunteers were not obliged to respond to a particular call, if they did, then they undertook to carry out the work necessary to respond to the call and therefore be considered a worker under the ERA 1996.

Key takeaways for employers

  • Employers relying on voluntary arrangements must not assume that labelling individuals as ‘volunteers’ in their contractual documents will prevent worker status from arising. Courts will look at the substance of the relationship, including whether there is a ‘wage-work’ bargain in practice.
  • Written statements, contractual or otherwise, asserting that no employment relationship exists between the parties will not prevail if the underlying documentation or conduct indicates that there was an intention to create legal relations.
  • Any form of remuneration that goes beyond reimbursement of out of pocket expenses may point towards worker status.
  • A lack of obligation to attend work will not exclude worker status. Voluntary attendance does not prevent the existence of a contract for work or services arising.

Employers should consider reviewing volunteer handbooks, including the current wording and payment structures of any remuneration documents, to ensure that they align with the reality of the relationship between the parties.

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