Can a Volunteer Qualify as a Worker?

In this article we analyse the recent judgment of the Employment Appeal Tribunal (EAT) in Martin Groom v Maritime and Coastguard Agency.

FACTS

Mr Groom (G) was a volunteer for the Maritime and Coastguard Agency (MCA), since 1985.  In May 2020, G was invited to a disciplinary hearing, and following this his membership and volunteer status were terminated.  During the disciplinary process, G requested to be accompanied by a trade union representation.  MCA refused his request on the grounds that he did not qualify as a worker.  Subsequently, G submitted a claim to the Employment Tribunal (ET) asserting worker status and as such a right to be accompanied.

ET Judgment

The ET found that G was not a worker.  The ET found that G’s claim fell at the first hurdle for worker status, namely that there was an absence of a contract between G and MCA.  The ET’s main grounds for this finding were that:

• the agreement between the parties was described as voluntary,
• there was no automatic right to remuneration for any activity performed (with no right for payment in return for work, there could be no Mutuality of obligations (MOO) even in the lowest sense to form a contract),
• there was insufficient control, and
• that HMRC had concluded the volunteers were not workers.

THE EAT

G appealed the ET’s judgment, primarily on the basis that the ET had erred in law when finding that the lack of automatic payment for performing activities resulted in there being insufficient MOO for a contract to exist between the parties.  G argued that the lack of automatic payment merely concerned payment mechanisms rather than the existence of a contract.  Payment was available for certain activities but had to be requested, rather than it being automatically paid.

The EAT agreed with G and allowed the appeal in relation to periods when G was conducting activities that allowed for a payment to be made.  The EAT found that in this case, the focus was not on whether MOO subsisted on an overarching basis, but rather on whether MOO existing each time G worked.  The matter of whether G was a worker for periods when the activities were carried out but did not entitle G to a payment was remitted back to the ET.

SUMMARY

An interesting judgment on the circumstances in which payment for work can result in the required MOO for a contract to exist with regards to volunteer work.  As we always say, status cases are circumstance specific and the devil is always in the detail, and if this judgment is of interest contact us for more information.

It is important to note that common worker status issues of personal service and the business/ profession test were not in issue here and therefore not discussed.