Background
Mr Groom was a volunteer coastguard rescue officer ('CRO') for the Maritime and Coastguard Agency ('MCA')'s rescue service, from 1985 to 2020. Following the termination of his position, Mr Groom brought proceedings in the Employment Tribunal ('ET') for breach of the right to be accompanied at a disciplinary meeting – a right dependent on whether he had 'worker' status, pursuant to section 230(3)(b) of the Employment Rights Act 1996.
CROs were provided with a volunteer handbook, which set out that the relationship between the CROs and the MCA was 'a voluntary two-way commitment where no contract of employment exists', with 'no mutuality of obligation' between the parties. The handbook also provided policies and procedures setting out expectations from both parties – including the requirement for CROs to comply with a code of conduct, which mandated that CROs were to maintain a specified level of incident attendance.
Further, a remuneration document set out that CROs were able to claim payments for time, travel and expenses associated with specific activities undertaken whilst on duty. Although there was no obligation to do so, if claiming such payments, CROs would receive payment and a payslip showing hourly rate no less than the national minimum wage, expenses, and a P60 annually.
Employment Tribunal and Employment Appeal Tribunal decisions
Initially, the ET had found that Mr Groom was not a worker, with there being no contractual obligation for the Mr Groom to provide work or services to the MCA. Mr Groom then appealed to the Employment Appeal Tribunal ('EAT').
In allowing the appeal, the EAT focused on whether Mr Groom would be a worker every time he attended an activity with the MCA. It found that the documents detailed above established a right for CROs to be remunerated for many activities, with it being irrelevant that CROs would need to submit a claim for payment. The EAT found that that a contract existed when a CRO attended an activity where there was a right to be remunerated – therefore, rendering Mr Groom a worker when he attended remunerated activities.
Court of Appeal decision
On appeal from the MCA, the Court of Appeal upheld the EAT's decision, finding that when a CRO attends an activity from the MCA, and becomes entitled to claim payment under the remuneration document, a contract comes into existence.
Whilst the handbook, code of conduct and remuneration document showed that officers not being obliged to attend for work on a particular occasion and being able to specify the time they could do so, when they did attend, they were bound by instructions and were able to claim remuneration. The argument as to mutuality of obligation was also rejected – Mr Groom was required to comply with reasonable instructions whilst on duty, and the MCA were required to pay Mr Groom if he chose to submit a payment claim for such remunerated activities.
Further, it was held that Mr Groom could still have worker status despite being under no obligation to attend the activities – the contract of employment was restricted to the time he carried out paid work, as the obligations for both parties only existing during this short time frame.
Comment
Organisations reliant upon volunteer workers face significant risks from this judgment – particularly volunteers who are remunerated. Whilst volunteers do not benefit from the protection of employment rights, workers have a swathe of rights – including entitlement to the National Minimum Wage, protections against unlawful deductions from wages, a statutory minimum entitlement to paid holiday and to rest breaks, and for protection against discrimination under the Equality Act 2010 and for whistleblowing. Organisations may face significant litigation risks for such claims as well, including the costs incurred in defending the same.
Whilst this case related to a volunteer, there are wider implications for all employers. Organisations should review their relevant agreements to ensure the employment status of their workers is correctly identified. As has been demonstrated in this case, the Tribunals and Courts will look beyond labels when determining employment status – including conducting a detailed review of the documents which govern the relationship between the parties.
