In the recent case of Groom v Maritime and Coastguard Agency, the Employment Appeal Tribunal held that the Employment Tribunal erred in failing to find that there was a contract for the provision of services in respect of a coastal rescue service volunteer who attended activities for which he was entitled to remuneration.

Background

The Claimant was a volunteer in the Coastal Rescue Service (CRS) as a Coastal Rescue Officer (CRO). The CRS is made up of 325 coastguard rescue teams; of which there are approximately 108 employed staff and 2500 coastal rescue officers and station officers, who were labelled as volunteers. Volunteers generally have no employment or worker rights and receive no protection from the law.

In accordance with the Volunteer Handbook, membership of the CRS was held to be ‘entirely voluntary’ and the relationship between the Maritime and Coastguard Agency and the CRS volunteers was a “voluntary two-way commitment where no contract of employment exists”.

Volunteers were expected to abide by the Code of Conduct, which was intended as guidance for CROs, however failure to follow the Code could have resulted in termination of CRO membership. Amongst other things, the Code required CRO’s to undertake training and to maintain a reasonable level of incident attendance. The Code also included a section headed “Payment” which provided the following:

“You can submit monthly claims for payment for certain activities if you wish, although some CRSs choose not to. This money is to cover minor costs caused by your volunteering, and to compensate for any disruption to your personal life and employment and for unsocial hours call-outs. Further details of how to claim are available from your SCOO”.

A further section of the Code addressed “Remuneration Claims” and is said to apply to “claims for time (hourly rate) remuneration”. When payments were made, the CRO would receive a payslip which itemised hourly remuneration and expenses, and at the end of the year, the CRO would receive a P60.

Following a disciplinary hearing, the Claimant’s CRS membership was terminated, and he was subsequently issued with a P45. The Claimant made a claim to the Employment Tribunal that MCA was in breach of the requirement in the Employment Relations Act 1999 to permit him to be accompanied by a trade union representative at the disciplinary hearing. The claim depended on the Claimant being able to establish that he was a ‘worker’ within the meaning of section 230(3)(b) of the Employment Rights act 1996.

Tribunal Judgment

At a preliminary hearing, the Tribunal decided that the Claimant was not a worker because there was no contract between himself and the Respondent.

The Tribunal set out four factors pointing to the conclusion that there was no contractual relationship between the Respondent and CROs:

1. The agreement was described as a voluntary agreement.
2. There was no ‘automatic’ remuneration for any activity and many CROs never claim; there are a number of activities for which remuneration is not payable at all, participation in which is only explicable in the context of volunteering.
3. “The degree of control does not appear to be particularly significant”.
4. The fact that an HMRC investigation concluded CROs were not workers was “clearly significant”.

The Claimant’s claim was dismissed, and the Claimant then appealed to the Employment Appeal Tribunal.

Appeal

The Employment Appeal Tribunal allowed the appeal and found that the Tribunal erred in failing to find that a contract for the provision of services arose between the Claimant and the Respondent when he attended an activity in respect of which he was entitled to remuneration. The Code of Conduct set out minimum levels of attendance at training and incidents and it was held that there was no reason why those factors should not give rise to a contract.

It was noted that the term ‘volunteer’ does not have a precise meaning and there was nothing to support the proposition that as a matter of law a volunteer provides services on a non-contractual basis.

The Employment Appeal Tribunal therefore substituted a decision that the Claimant was a worker when he attended activities in respect of which he was entitled to remuneration.

However, the question of worker status in relation to attendance at non-remunerated activities was not considered and therefore it remained an open question for the tribunal.

Learning points

• Any remuneration should be carefully considered. Remuneration of any sort could lead to a volunteer obtaining worker rights.
• The HMRC and employment law tests for employment status are not the same. Individuals can also establish worker rights under employment law, which is a lower threshold than the test to establish employment rights.

For more help on volunteer rights please contact the Employment Team at Paris Smith.

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