Employment status of volunteers

In Groom v Maritime and Coastguard Agency, the EAT considered whether a volunteer in the Coastal Rescue Service was a “worker” for the purposes of employment rights.

The case arose out of a dispute as to whether the individual had a right to be accompanied at a disciplinary hearing. Such a right applies to workers and to establish that he was a worker, the individual had to demonstrate that he was engaged under either:

1. a contract of employment; or
2. a contract, whether express or implied, whether oral or in writing, whereby he undertook to do or perform personally any work or services for another party to the contract whose status is not that of a client or customer of any profession or business undertaken by him

This is the usual worker test used to determine a variety of employment rights (eg the right to holiday pay).

Mr Groom was a Coastal Rescue Officer. There was no written contract in place with him and it was agreed that he was not engaged under a contract of employment. However, whilst he was described as a volunteer and subject to the Volunteer Handbook, he was entitled to claim remuneration for certain activities. This remuneration was separate to expenses and at the end of the year, he received a P60 setting out his earnings from such activities during the year.

The EAT did not consider any argument about whether Mr Groom was engaged under an over-arching contract throughout his engagement as this point had not been argued in the Tribunal at first instance. The EAT was therefore concerned only with the argument as to whether, when Mr Groom was actually carrying out certain activities, he was during such periods a “worker”.

The EAT found that:

• There is no firm rule that a volunteer can never be an employee or a worker. The relationships are not mutually exclusive
• The fact that Mr Groom had to claim for remuneration (as opposed to automatically receiving it) and that some CROs did not claim remuneration, was not a relevant distinction. The right to remuneration was an important factor in the determination and it had been wrong for the Tribunal to discount it on the basis that Mr Groom had to claim payment
• Whilst Mr Groom was carrying out activity to which remuneration was applicable, his work was controlled by the organisation and there was an implied contract in place.

On this basis, the EAT found that whilst carrying out work for which remuneration applied, Mr Groom was a “worker”.

Importantly, the decision did not:

• Make a finding as to whether Mr Groom was a worker whilst undertaking activities which did not attract remuneration
• Make a finding as to whether there was an “over-arching” worker contract in place at all times
• Make a finding that volunteers will always be workers.

This case is a useful reminder of the complexity of employment status questions (an issue that the Labour Party have said they will address if they form the next government).