Court of Appeal finds that “volunteer” Coastguard Officers are workers
In a recent judgment, the Court of Appeal have confirmed that Coastguard Rescue Officers (“CROs”) who attend emergency call outs for the Maritime and Coastguard Agency (“MCA”) are workers rather than volunteers for the purposes of the Employment Rights Act 1996.
This is an important decision as it has wide ranging consequences for many organisations who engage “volunteers” and is yet another reminder of the fact that what is written down on paper will not always be the defining consideration when questions of worker status are raised.
Background
The case concerned a claim originally brought by Mr Groom in the Employment Tribunal back in the autumn of 2020. Mr Groom was a CRO, who had been dismissed earlier that year and denied the right to bring a member of his trade union – the GMB –to a “Challenge Meeting”. This meeting was held after his dismissal, so was essentially an appeal hearing. He was one of over 3,000 CROs who volunteered for the Maritime and Coastguard Agency and argued that he was not a volunteer but was in fact, a worker.
Under section 10 of the Employment Relations Act 1999, workers have the right to be accompanied at formal meetings such as grievance or disciplinary hearings, by a companion of their choosing, if the companion is a trade union official or another of the employer’s workers.
But was Mr Groom a worker, when he had, for all intents and purposes, been viewed as a volunteer since joining the MCA in 1985?
Employment Tribunal Proceedings
Whilst Mr Groom initially pursued a claim for unfair dismissal, his claim on this point was presented out of time and so, was struck out. However, his claim also included a claim for breach of section 10 of the Employment Relations Act 1999, and this element of his claim proceeded to a preliminary hearing in the Employment Tribunal to determine whether he was indeed, a worker.
Employment Judge Cadney considered whether CROs are workers within the meaning of section 230(3)(b) Employment Rights Act 1996, being an individual who has entered into or works under,
“(b) 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.”
During this and subsequent hearings, there was much examination of the documentation in place between MCA and the CROs contained within a Volunteer Handbook. The Handbook had various provisions, including;
- A statement which outlined that the relationship between them was a voluntary two-way commitment that did not amount to an employment contract;
- a Code of Conduct for CROs, which required CROs to; follow all reasonable requests made to them, maintain their competence by attending training, and maintain a reasonable level of incident attendance; and,
- a section headed “Payment” which entitled CROs to submit claims to cover minor costs caused by their volunteering and compensation for disruption to their personal life.
Mr Groom argued that these matters gave rise to a contractual relationship between the CROs and the MCA which was that of worker and employer. Judge Cadney rejected this argument and held that Mr Groom and his fellow CROs were volunteers and that there was a “genuinely voluntary relationship” between the parties. In making this decision, weight was placed on the assertions within the documentation that the relationship was not one of an employment relationship and that the payment available to CROs was not automatic and had to be claimed for. It was also noted that many CROs chose not to make a claim and so attended call-outs on an unpaid basis. The other factor that Judge Cadney relied upon when making his decision, was that there was no contract which bound the parties in between each call-out.
Mr Groom appealed.
Employment Appeal Tribunal
The Employment Appeal Tribunal then heard the appeal and considered the issue of whether there was a contract between the parties more closely, specifically considering whether there was a contract between them each time a CRO attended a call-out, rather than whether a contract existed between them outside these times.
Judge Mansfield decided that a contract did exist between the parties each time that a CRO accepted a call-out and consequently decided that Mr Groom and his fellow CROs were in fact, workers.
The Judge found that the fact that the documentation and parties described the relationship as voluntary was not a conclusive determination when the other elements of their relationship, such as the right to payment and the obligation to adhere to the Code of Conduct, pointed otherwise. He set out that the landmark Supreme Court decision of Uber v Aslam required Tribunals to “look beyond the labels used in documents” and noted that the wording in the Handbook which described a “two-way commitment” between the parties indicated some form of mutual obligation between the parties.
This time, it was the MCA who appealed the decision.
Court of Appeal
A panel of three judges in the Court of Appeal heard the MCA’s appeal against Judge Mansfield’s decision. MCA argued that there were no obligations between them and the CROs nor a contractual relationship. MCA said that it was relevant that there was no mutuality of obligations outside the time that the CROs attended a call-out, as Judge Cadney in the Employment Tribunal had decided. In making the argument that there was no mutuality of obligations between the parties, the MCA relied on the fact that there was no obligation for a CRO to accept a call-out and highlighted that if they did accept a call-out, they were under no obligation to stay for the duration of that incident. Mr Groom disputed this, arguing that although he was not obligated to accept a call-out, he said he did have obligations to attend minimum levels of training and argued that a right to leave during the middle of a call-out was a distracting question, as no employer can obligate a worker or employee to remain in their workplace during their working hours. He argued that mutuality of obligations was evidenced by a CRO’s adherence to the Code of Conduct and the MCA’s power to take relevant disciplinary action for any breaches of the same.
The Judges held that there was an intention to create legal relations between the parties. Lord Justice Stuart-Smith in his consideration, highlighted that the fact that there was a way for CROs to be renumerated for their attendance at call-outs was a “strong indication both of an intention to create legal relations and…the existence of a contract”. He also went further and discounted the argument that the CROs are not workers because they were free to leave a call-out at a time of their choosing, by saying that to do so would be inconsistent with a CRO’s requirement to comply with reasonable requests under the Code of Conduct. Lord Justice Bean considered the issue of whether the lack of obligations between call-outs and the lack of obligation to respond to a call-out prevented Mr Groom being classified as a worker and concluded that it did not, the focus was on what the obligations were between the parties at the time a CRO attended a call-out, even if the obligations only arose during that time.
Comment
Barristers for Mr Groom highlighted that this issue was an important point given that so many rescue services rely on the services of paid volunteers, but all employers will need to consider the position for any volunteers they use, particularly where those volunteers are paid. Workers (rather than volunteers) have wide-ranging statutory entitlements that employers will need to consider, including the right to the national minimum wage, holiday pay and other protections such as the protection of whistleblowers.
This case also serves as a very useful reminder that the courts will examine the practical relationship between the parties when making decisions not just any documentation which has been put in place.
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