When might a volunteer be considered a worker?

The Employment Appeal Tribunal (“EAT”) has recently ruled on the question of whether a volunteer was a worker for the purposes of various employment rights. This distinction could have significant legal consequences in terms of legal obligations and the case below highlights some of the risks that organisations using the services of volunteers may face.

Facts

Mr Groom (“the Claimant”) was a volunteer for the Maritime and Coastguard Agency’s Coastguard Rescue Service. He had been engaged by the Respondent since 1985 and had had his membership terminated in 2020 following a disciplinary hearing.  The Claimant brought Employment Tribunal (“ET”) proceedings alleging that the Respondent had breached his right to be accompanied by an appropriate representative at a disciplinary hearing contrary to section 10 and 11 of the Employment Rights Act 1999. The Claimant produced evidence including the “Volunteer Handbook” and the “Code of Conduct” in support of this conclusion as well as the sections in the Volunteer Handbook which set obligations on the volunteers and the “Payment” section which entitled volunteers to be paid for certain activities including for minor costs from volunteering and to compensate for disruption. The Respondent referred to the payments section highlighting that some volunteers choose not to be paid and that the Volunteer Handbook was clear that there is no mutuality of obligation.

The ET rejected his claim on the basis that he failed to meet the definition of a “worker”. The ET concluded that there was no contract between the two parties. It did so on the basis that:

  1. The agreement was described as voluntary;
  2. There was no “automatic right” to payment and many volunteers never claimed for payment;
  3. The Respondent did not have “particularly significant” control over their volunteers;
  4. That a HMRC investigation concluding they were volunteers was “clearly significant”.

The Claimant appealed the decision that he did not meet the definition of a worker.

The law

The key definition in this case is that of a “limb (b)” worker which derives from Section 230(3) of the Employment Rights Act 1996 which defines workers as individuals who enter into or work under:

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.

The decision in South East Sheffield Citizens Advice Bureau v Grayson was relied upon by the ET that the crucial question in volunteering cases was not whether benefits received by a volunteer amount to consideration for work done, but whether any agreement imposes a contractual obligation on the organisation to provide work for the volunteer and for the volunteer to personally perform the work provided to them. In this case it was concluded that the volunteer could leave with or without notice and in which case the organisation would have no remedy.

Decision

The EAT allowed the appeal and concluded that the Claimant was a worker.

The EAT recalled that the question of whether a volunteer is in fact a worker is a question of statutory interpretation, not contractual interpretation.

The Respondent had sought to argue, following Grayson, that “volunteering” was a sui generis (unique) relationship which sits outside of the regime of section 230 and is binding only in honour. The EAT rejected this argument and that Grayson stands for this proposition and that it Is clear that the status of a particular volunteer will depend on the circumstances of the arrangement.

In respect of mutuality of obligations, the EAT did not consider whether an overarching contract existed between periods where the Claimant was engaged because it was not argued before the ET. The EAT did, however, focus on whether a contract came into existence in respect of individual periods where the Claimant was engaged.

The EAT rejected the ET’s findings that the lack of an “automatic right” to remuneration and that many volunteers did not make a claim for payment were relevant. The EAT concluded that the ET had not considered the importance of the fact that there was a right to remuneration for many activities. Simply because the volunteer is not obliged to perform the activities is not inconsistent with them being a worker when they do undertake the activity. The question of mutuality of obligation was more relevant for “umbrella contract” cases but there were different considerations in “single engagement” cases. In this case, if a volunteer attended, they would have a right to be remunerated for their time. On this basis, the EAT concluded that a contract did exist as it would be odd to conclude otherwise as this would deprive the volunteer of the right to sue for payment.

The EAT held that a worker contract came into existence when the volunteer attended to an activity to which they were entitled to remuneration.  The Respondent had sought to argue that any such contract would be a collateral contract for the reimbursement of expenses (i.e. a separate contract following the work being carried out). The EAT rejected this as an artificial distinction as when a volunteer attends to an activity they know whether remuneration is applicable and that they will be entitled to it.

The EAT did not reach a conclusion on whether the Claimant was a worker when carrying out unremunerated activities as this was not addressed on appeal.

Comment

This decision should be of relevance for employers that host volunteers, interns or work experience on occasion. Whilst the decision did not conclude that all volunteers will be workers or, indeed, that the Claimant was a worker while carrying out activities which attracted no remuneration, the decision is a reminder that paying volunteers more than simply their out-of-pocket expenses risks suggesting that the volunteer is, in fact, a worker and entitled to the protections which exist for workers. It was also notable in this case that the Claimant was subject to a number of obligations.

It is important that where an organisation is considering engaging a volunteer, intern or work experience placement that the relationship is appropriately documented to mitigate the risk that the relationship, in fact, becomes a worker-employer relationship.

Case reference: Groom v Maritime & Coastguard Agency [2024] EAT 71

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