The Court of Appeal has found that volunteer coastguard rescue officers could be classified as ‘workers’. This follows an original claim from one volunteer, who claimed the right to be accompanied to a disciplinary hearing, which relied on him having ‘worker’ status.
Case background
Mr Groom, a volunteer coastguard rescue officer, brought an employment tribunal claim against the Maritime and Coastguard Agency claiming the right to be accompanied to an appeal hearing by a member of his trade union–a statutory right awarded to employees and ‘workers’ only. Previously, coastguard rescue officers performed rescue activities with no obligation to do so and undertook these activities on a voluntary basis. They were also under no contractual obligation to accept work.
However, the claimant, alongside other volunteers, claimed hourly remuneration of no less than the minimum wage for certain optional activities, as allowed by a document provided to them. Rescue officers were required to comply with a code of conduct which required a reasonable level of incident attendance to be maintained. This requirement was relevant to assessing whether sufficient contractual obligations existed to establish ‘worker’ status.
The Court of Appeal’s ruling
The Coastguard emphasised that rescue officers were not legally obliged to continue any activity they’d already agreed to, which suggests an absence of mutuality of obligation. The claimant argued that his ability to claim and receive remuneration was evidence of a classic work/wage bargain and his duty to fulfil minimum incident attendance qualified as work obligations.
He argued that these factors demonstrated sufficient consideration and mutuality of obligation to form a personal contract of service.
Considering all points and previous decisions, the Court of Appeal decided to classify the volunteer coastguard rescue officers as ‘workers’, along with the decision that a contract comes into existence when an officer attends an activity for which there is a right to claim remuneration for.
The Court rejected the argument that there was no mutuality of obligation and found sufficient intention to create legal relations once the volunteer agreed to provide services to the Maritime and Coastguard Agency.
The Court of Appeal’s decision: Main principles
Various principles can be drawn from this outcome and applied to alternative employment circumstances.
The outcome suggests that mutuality of obligation, being the essential element of a worker or employee contract, can exist even when one party can choose to cancel the activity part way through. Also, a person may be a ‘worker’ regardless of the person having no legal duty to work at or for a specified time.
Remuneration (distinct from expenses) being paid to the person in return for carrying out the work will be a clear indicator of a mutuality of obligation and intention to create legal relations. Conversely, the absence of such payment or other benefits may indicate the person as being a genuine ‘volunteer’ with no ‘worker’ status.
Impacts on employers
The case outcome demonstrates that people who may be expressly labelled as volunteers in any written agreement are likely to be classified as ‘workers’ if they are eligible to receive even minimum levels of remuneration in return for their services, regardless of whether the work is optional or not.
By gaining ‘worker’ status, an individual will acquire statutory rights not provided to volunteers, such as the right to be accompanied to disciplinary and grievance hearings, a right to be paid the national minimum wage, statutory paid holiday of 5.6 weeks per year, sick pay and various other protections. If individuals have been wrongly classed as volunteers for protracted periods this can result in potentially significant liabilities, including underpayment of minimum wage and unpaid holiday pay. For this reason, employers and sectors, particularly those heavily reliant on volunteers, should carefully audit volunteer working arrangements and check the risk of them having worker status considering the Court of Appeal’s decision. Employers should obtain legal advice, where necessary, to rectify any legal risks from an incorrect classification of status.
Organisations seeking to retain genuine volunteer arrangements should, where possible, avoid imposing mandatory training or attendance requirements, and avoid any element of remuneration, as they may strongly indicate a worker-employer relationship.
How can we help?
For further information about issues raised in this article, please contact a member of our Employment team.
