EAT finds volunteer was a worker and able to bring a claim concerning the right to be accompanied
Charities often rely heavily on their amazing volunteers across a range of roles, including office holders such as trustees and directors, and those on the "front line" working to further the objects of the charity. However, organisations should be aware that the status of "volunteer" does not have a legal definition, and that some volunteer arrangements could be found by a court or employment tribunal to be worker or employee contracts, entailing significant rights and obligations.
Volunteer arrangements are usually characterised by a lack of obligation to work set hours and carry out set tasks, and are expressed instead in terms of hopes and expectations. However, as a recent case in the EAT highlights, even arrangements which place no obligation on the volunteer to carry out work could meet the legal definition of a worker, and particularly where the volunteer is compensated or remunerated for their time spent volunteering.
What is a worker?
Under section 230 of the Employment Rights Act 1996 a worker is defined as 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."
This means that in order for the individual to be a worker:
- There must be a contract of some kind between the employer and individual;
- That contract must be a contract to provide a service;
- There must be an obligation under the contract to provide the service personally (in other words the individual must carry out the service themselves); and
- The employer must not be the client or customer of the individual (in other words the individual is in business on their own account).
Is there a contract of any kind?
Volunteer agreements will usually include wording to the effect that they are binding in honour only and not intended to be a legally binding contract. However, this kind of wording is not a magic formula which prevents a contract being formed. In law, a contract will come into being if all of the following apply:
- It was a contract to provide a service and not merely a collateral contract to reimburse expenses;
- There was no dispute between the parties that, if a contract existed, it was a contract obliging Mr Groom to provide personal service; and
- There was also no contention that the relationship was one of contractor and customer and that Mr Groom was in business on his own account.
Case details: Groom v Maritime and Coastguard Agency
Mr Groom was a volunteer coastal rescue officer for the Maritime and Coastguard Agency. The key document setting out the arrangement was the "volunteer handbook". The handbook included:
- An expectation that volunteers would have a reasonable attendance level at incidents;
- Payment of expenses;
- Payment of remuneration for time spent taking part in a number of different activities based on an hourly rate (expressed to be "compensation for any disruption to your personal life and employment");
- An expectation that individuals would attend specified levels of training to maintain competence;
- A statement that the arrangement was voluntary and unpaid and that there was no minimum response commitment; and
- The arrangement was described as a "voluntary two-way commitment where no contract of employment exists".
Volunteers were also required to comply with a code of conduct which set out requirements to maintain standards, including safety standards and the professional image of the organisation.
Mr Groom was subject to a disciplinary procedure for breach of the code of conduct and requested to be accompanied by a trade union representative. This request was denied.
Mr Groom brought a claim under section 10 Employment Relations Act 1999 which sets out the right to be accompanied to disciplinary and grievance hearings and provides for up to two weeks' pay (subject to the statutory cap) where the claim is upheld.
As a preliminary issue the tribunal had to decide whether Mr Groom was a worker and so entitled to this right.
Employment tribunal decision
The tribunal found that Mr Groom was not a worker and could not go on to bring his claim. This decision was based on a finding that there was no contract of any kind between Mr Groom and the organisation. The tribunal considered that the arrangement was genuinely voluntary in nature as there was no intention to create legal relations and no remuneration. It noted that the majority of volunteers did not in fact claim any payment for time spent carrying out activities for which remuneration could be claimed under the handbook. It determined that the volunteers were under no obligation to attend activities or incidents.
Mr Groom appealed this decision.
Employment Appeal Tribunal decision
The EAT did not agree. It found that all required elements of a contract were in place. Although the volunteer handbook included contradictory statements, there was clearly mutual obligation in the arrangement: the right to payment of remuneration for attending incidents and activities and complying with the code of conduct. Even if remuneration was not claimed, the right to remuneration was sufficient for consideration to exist.
The EAT considered that a contract existed even though the volunteer was not obliged to attend. The contract came into being when the volunteer attended an activity for which he had the right to remuneration under the handbook.
The EAT made clear that use of the label "volunteer" and statements about there being no employment contract were not conclusive. The written documents had to be considered alongside the reality of the arrangement in order to analyse the contractual position.
Having determined that there was a contract in place, the EAT held that it was a worker contract because:
- It was a contract to provide a service and not merely a collateral contract to reimburse expenses;
- There was no dispute between the parties that, if a contract existed, it was a contract obliging Mr Groom to provide personal service; and
- There was also no contention that the relationship was one of contractor and customer and that Mr Groom was in business on his own account.
The EAT substituted a finding that Mr Groom was a worker for the period in which he carried out activities for which he was entitled to remuneration, enabling him to pursue his claim. There was no argument by the claimant in this case that there was an overarching worker contract which existed in between each period of his attendance.
Reviewing volunteer arrangements
This judgment is an important reminder that there is no legal status of "volunteer". It is possible that a so-called volunteer will meet the definition of a worker. This will be the case if a contract of some kind exists and all other elements of the statutory definition of a worker are met.
Worker status entails a raft of rights including to National Minimum Wage, working time protections, rest breaks, minimum paid holiday and sick leave. This case may now give rise to further claims from coastal rescue officers for a range of workers' rights. Given that the Maritime and Coastguard Agency works with some 3500 volunteers, it is possible that the organisation will seek permission to appeal this judgment.
Volunteer agreements and codes require careful drafting to seek to reduce the risk of a contract coming into existence between the organisation and its volunteers. However, it is important also to review your practical arrangements for working with and rewarding or compensating volunteers given the risk that a volunteer might later be found to be a worker or employee. Our team will be happy to assist with a review of your organisation's volunteer documents and practices.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.