Employment Case Law Update - Summer 2024

Employment Appeal Tribunal (EAT) deems that a volunteer can be a worker

In Groom v Maritime & Coastguard Agency, the EAT deemed that a volunteer for the Coastal Rescue Service (CRS) can be a worker for the purposes of the Employment Rights Act 1996 (ERA). This case provides an interesting development in the complex world of employment status.

If a person is genuinely a volunteer, they will have very few rights in employment law. However, if deemed a worker, additional (albeit limited) rights will be available to that individual, including the minimum wage; the right to be accompanied by a colleague/trade union representative at disciplinary hearings; working time protection and holiday pay.

The claimant brought a claim because he was refused the right to be accompanied by a trade union representative at a disciplinary hearing.

The CRS volunteers were governed by a volunteer handbook, which referred to the voluntary nature of the appointment and set out the expectations of volunteers. For certain activities, volunteers were able to claim costs caused by their volunteering and to compensate them for any disruption to their personal life and employment and for unsociable hours call-outs.

The tribunal had originally found that there was no contract between the parties and identified four factors that pointed towards the conclusion that the claimant was a volunteer and not a worker.

The claimant appealed to the EAT, which allowed the appeal. It was held that a volunteer can be considered a worker if they are entitled to be remunerated for their activities.

The dispute in this case concerned whether there was a contract to perform work or services. The respondent had argued that the status of volunteers was unique and negated the existence of a contract between the volunteer and the organisation on behalf of whom they volunteered. The EAT held that there was nothing to support this proposition.

It was held to be irrelevant that remuneration was not automatic and that not all volunteers made a claim for remuneration. The EAT highlighted that volunteer status will differ depending on particular arrangements and that a contract came into existence when a volunteer attended a relevant activity for which they had a right to remuneration.

The parties agreed that if the obligation existed, it was for personal service, so the EAT substituted a decision that the Claimant was a worker. It did not reach a conclusion about whether he was a worker when he was doing unremunerated activities, which remains an undetermined topic of discussion.

Conclusion

It is important to note that there is no definition of a “volunteer” and volunteer status will differ depending on the arrangements between the parties. However, this case is an indicator that volunteers can be considered workers in some circumstances and organisations should be conscious of this when reviewing their volunteer practices and documentation.

Should a volunteer be deemed a worker in the organisation, this could be costly to the employer in the form of making payments for holiday pay and national minimum wage. There could potentially be a large liability to make back payments in this regard too, so caution should always be exercised around volunteering arrangements.

Race Discrimination and the burden of proof

Leicester City Council v Parmar involved a claim of direct race discrimination against Leicester City Council. The claimant argued that she had been subjected to disciplinary proceedings and consequences because of her race as a British national of indian origin.

The Employment Tribunal (ET) had upheld the claim as it found that the only employees disciplined by the claimant’s manager were of Asian ethnicity. There were a number of comparable situations involving white staff members where the claimant’s manager had not instigated disciplinary investigations but had dealt with them informally. The ET had found that the burden of proof had shifted, and the respondent had failed to discharge their burden. The respondent appealed and the Employment Appeal Tribunal (EAT) dismissed the appeal.

The EAT held that the ET had considered whether there was a non-discriminatory reason for the treatment of the rlaimant and found that the Respondent had failed to establish that this was the case. If there are multiple examples of unfair treatment, it is unlikely to be found that there was merely a difference in treatment. In this case, several employees of a different race to the claimant had not been subjected to such harsh disciplinary proceedings in similar circumstances. This in itself was enough to establish more than a mere difference in treatment.

The explanation of the ET was enough to explain why the burden of proof had shifted to the respondent and why the respondent had failed to discharge the burden upon it i.e. the disparity that the respondent had not disciplined employees of another ethnicity in similar circumstances.

This case proves a useful reminder of the operation of the burden of proof in cases of discrimination and the importance of considering all the evidence available alongside the legal principles. Respondents should be alive to the fact that, if the claimant can show they have a case for discrimination on the face of it, then the respondent will have the burden of showing that it did not discriminate.

Absence of protection from detriment for participating in industrial action incompatible with Article 11 of the ECHR

In Secretary of State for Business and Trade v Mercer, the Supreme Court has made a declaration that section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992, which protects workers from being subjected to a detriment to deter them from taking part in trade union activities, is incompatible with Article 11 of the European Convention on Human Rights.

Mrs Mercer was a support worker and a workplace representative for a trade union, Unison, employed by Alternative Future Group Ltd (AFG). In early 2019, Unison called a series of strikes. Mrs Mercer was involved in planning, organising and participating in these strikes.

Mrs Mercer was suspended and disciplined by her employer after taking part in a strike. She issued tribunal proceedings, arguing that she had been subjected to a detriment for participating in trade union activities contrary to section 146. AFG resisted the claim on the basis that the suspension and disciplinary action were unconnected to trade union activities but that, in any event, taking part in industrial action was not an activity protected by section 146.

The tribunal held that trade union activities under section 146 excluded participation in a strike and that employers could subject workers to a detriment short of dismissal for participating in industrial action. While this was a breach of the right to freedom of association under Article 11, section 146 could not be read down compatibly with Article 11. The Employment Appeal Tribunal held that section 146 could be read down to comply with Article 11. The Court of Appeal restored the tribunal decision.

The Supreme Court made a declaration that section 146 is incompatible with Article 11, as it fails to provide any protection against sanctions, short of dismissal, intended to deter or penalise trade union members for taking part in lawful strike action organised by their trade union. The court found that section 146 encouraged and legitimised unfair and unreasonable conduct by employers since it enabled them to impose any sanction at all, short of dismissal for participation in lawful industrial action. This had the effect of nullifying the right to take lawful strike action and put the UK in breach of Article 11. While it was not possible to read down section 146 to comply with Article 11, a declaration of incompatibility was appropriate.

It will now be a matter for the government to legislate to provide protection from detriment for participating in lawful strike action. Until the law is changed, section 146 will continue in force. Given its commitment to update trade union laws, the new Labour government may be likely to address the Supreme Court’s decision sooner rather than later.

Contract workers could not claim indirect discrimination against principal regarding terms of contract with employer

In Boohene and others v Royal Parks Ltd, the Court of Appeal held that contractors could not bring an indirect race discrimination claim against the end-user of their services (the principal) in relation to their employer’s failure to pay them the London Living Wage (LLW).

The claimants were 16 contract workers who were employed by Vinci Construction UK Ltd to provide services to Royal Parks Ltd. The contractors’ case was that the principal paid the LLW to its own employees, while failing to require their employer to pay it to them. The court held that the complaint was outside the scope of section 41 of the Equality Act 2010: it was concerned with rights arising from the employer-worker relationship, not the principal-worker relationship, irrespective of any influence that the principal had on the contracts between the employer and its workers.

Although the court upheld the Employment Appeal Tribunal’s decision, it held that the EAT had erred in considering that the extent of control the principal had over the terms of the contracts between employer and contractor was the determining question of whether a claim was within the scope of section 41(1). Following the case of Allonby v Accrington and Rossendale College [2001], a complaint by a contract worker that the terms of their contract were discriminatory could only be made against their employer, as those terms were not part of the principal-worker relationship.

In dismissing the contractors’ appeal, the court held that the tribunal had erred in only considering the pool advanced at the hearing, which was limited to those employed under the same contract as the claimants and the principal’s directly-employed staff. The claimants’ pleaded case defined a pool which included all contractors working for the principal. However, they had failed to advance any evidence of the ethnicity of those other contractors, only relying on the ethnicity of those employed directly by the principal and those contractors employed under the same contract as the claimants. Therefore, even if the claims were within the scope of section 41(1), the court would have dismissed the claims as the claimants had not proved their pleaded case on indirect discrimination. The EAT had therefore been correct not to remit the claim to the tribunal, as the claim could not succeed on the evidence adduced.