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Tribunal decisions

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It’s hard to say for definite whether a volunteer will be seen as a worker or and employee. The issue generally only arises when volunteers claim access to workers’ or employment rights, so these cases give the best guide to future decisions.

However, as these cases are rare, it can be difficult to second-guess how a tribunal might view a situation.

Maria DeLourdes Armitage v Relate & others (1994)

This is the most well-known tribunal case of this kind. This was a racial discrimination case brought by Mrs Armitage, a volunteer counsellor with Relate. Mrs Armitage’s service agreement said that she had to provide a minimum amount of counselling each week. If she left Relate before providing 600 hours of counselling, she would have to pay back some of the cost of her training. There was also the possibility of payment for work after a certain number of volunteer hours. In one passage of the agreement the Executive Committee is described as ‘technically “the employer” of the counsellor’.

The tribunal decided that the mutual obligations set out in the agreement (Relate’s obligation to provide training and the counsellor’s obligation to work or repay the cost of the training) and the expectation of paid work in the future created a contract of employment for the purposes of bringing a discrimination claim.

Migrant Advisory Service v Mrs K Chaudri (1998)

Mrs Chaudri ‘volunteered’ in an office four mornings a week, working 12 hours in all. She initially received £25 a week to cover expenses. This sum increased to £40. Mrs Chaudri lived very close to the premises, worked from 10.00 to 13.00 and did not take a lunch break, meaning that it was hard to see what if any expenses she would have incurred.

The petty cash vouchers for the payments to Mrs Chaudri showed that she had been paid even when she was off sick or on holiday. The appeals tribunal said that the payments in return for regular hours of work clearly mean the same as a contract of employment. Judge Hill, presiding, remarked that ‘this is a very simple case and it is perhaps, in a way, like the elephant – you know one when you see one’.

Murray v Newham Citizens Advice Bureau (2000)

While the Relate and Chaudri cases include quite unusual ways of working, the relationship described in this example is more typical. Here the appeals tribunal looked at the entire relationship between the organisation and its volunteers.

There was an agreement in which the volunteer committed to volunteer at particular times for a minimum time period, complete basic training within eight months and tell the Citizens Advice Bureau manager if they were absent or planned to leave. There were also grievance and disciplinary procedures in place and the volunteer was expected to meet certain commitments and requirements such as for claiming holiday.

While these elements were not as obvious as in other cases, together they were enough to create a contract of employment. The organisation agreed to provide training and support and to repay expenses.

Read this case in full.

Prior v Millwall Lionesses FC (2000)

This case involved Prior, a volunteer general secretary of a football club. While no money changed hands, Prior argued that the unpaid work she carried out for them amounted to consideration. The Employment Appeal Tribunal ruled that providing services – in this case work – was not sufficient for the creation of a contract:

But plainly the provision of benefit to another party is not enough to create a contract. It would amount to the gratuitous gift of services or goods and not a contract if it arose out of the simple provision of a benefit to another party. There has to be mutuality to any relationship in order to create a contract… Receipt by one of those two parties of a benefit is not sufficient. There must be a promise in return.

South East Sheffield Citizens Advice Bureau v Grayson (2004)

This case is of particular interest, as the Employment Appeal Tribunal showed a good understanding of volunteering and the issues faced by voluntary organisations. The case was brought by a paid member of staff trying to show that the Citizens Advice Bureau’s (CAB) volunteers could be seen as being in employment, bringing the number of employees in the organisation above the small employer exemption of the Disability Discrimination Act 1995 (DDA).

(At the time, the employment rules of the DDA only applied if the organisation had 15 or more workers. This criterion ended in October 2004.)

Read this case in full.

The original tribunal decision

The original employment tribunal, based its decision largely on Murray v CAB, found that the relationship between the CAB and its volunteers was contractual and fitted the DDA definition of employment. The act defines employment as:

subject to any prescribed provision, employment under a contract of service or of apprenticeship or a contract personally to do any work, and related expressions are to be construed accordingly.

This definition of employment included contracts to personally provide services: the ‘worker’ contract.

The tribunal’s decision was reached on the basis that:

there was an intention that work would be done by the advisers in return for the payment of expenses incurred and the provision of training, the opportunity to gain experience and the acceptance of legal liability on the part of the bureau for any errors which they may commit in the course of the work done.

It also pointed to the CAB’s use of disciplinary and grievance procedures, equal opportunities and health and safety policies, and provision for supervision as being consistent with employment.

The employment appeal tribunal’s findings

The case was appealed in November 2003. The Employment Appeal Tribunal (EAT) overturned the decision and set out a strong defence of the idea of volunteering held by most volunteer-involving organisations as a distinct relationship that is freely entered into. Some of the EAT’s main conclusions are explained below (the original employment tribunal is referred to as ‘the tribunal’).

Volunteer agreements

The tribunal had said it was significant that there was no clear statement in the CAB’s volunteer agreement saying it was not meant to create a legal relationship. The EAT felt that because the agreement was not signed and its stated intention was ‘to clarify the reasonable expectations of both the volunteer and the bureau’, it was not intended to be legally binding. The EAT said that few employees would define their relationship with their employer as ‘reasonable expectations’.

Expectations are not obligations

The tribunal said that the minimum commitment of six hours per week was a contractual element in the relationship. The EAT felt that as it was described as a ‘usual minimum commitment’ it was outlining an expectation. The volunteers were not told they had to work those hours nor were there sanctions if they did not. The EAT noted that the CAB relied on volunteers so it was not unreasonable for it to set out these guidelines. The volunteers were not paid for the hours they put in. 

Expenses and ‘if contracts’

Paying back expenses was seen as significant by the tribunal, but the EAT dismissed this, saying that it would be surprising if organisations left unpaid volunteers out of pocket. However the EAT said that the agreement to pay back expenses did amount to a contract. This may seem confusing, because normally contract involves a two-way relationship, but the EAT said there may be a unilateral contract in the agreement to pay back expenses and insure volunteers against negligence claims. This could be described as an ‘if’ contract; in this case the ‘if’ was: ‘if you do any work for the bureau and incur expenses in doing so, and/or suffer a claim from a client you advise, the bureau will indemnify you against your expenses and any such claim’. This may be a contract, but it is not a contract of work or employment – it does not say that the volunteer must provide or carry out work.

The tribunal had said that the ‘usual minimum commitment’ of six hours obliged volunteers to work, and in return as a consideration (read more about contracts for a definition of consideration) the CAB would provide training, supervision, experience, expenses and insurance cover – benefits that would be removed if a volunteer didn’t work. The EAT disagreed because these benefits were not shown to be linked to a reciprocal relationship and were an incorrect interpretation of a consideration. The key issue for the EAT was whether the volunteer agreement meant the CAB was contractually obliged to provide work or the volunteer was obliged to carry it out: ‘Like many similar charitable organisations, similarly dependent on the services of volunteers, the bureau provides training for its volunteers and expects of them in return a commitment to work for it, but the work expected of them is expressed to be voluntary, it is in fact unpaid and all that the volunteer agreement purports to do is to set out the bureau’s expectations of its volunteers’. A volunteer for the CAB can leave at any time without for breaching a contract. The EAT concluded that the CAB’s volunteers did not fall into the DDA’s definition of employment.

What do these cases mean for organisations?

The Grayson case set a precedent for future employment appeal tribunals. Although it concerned the DDA, the principles apply to cases where the employment status of ‘volunteers’ is being judged. The EAT saw the repayment of expenses, necessary training and a written agreement (that referred to the organisation’s grievance and disciplinary procedures), confidentiality clauses and a request for as much notice as possible if a volunteer was going to leave the bureau as reasonable parts of a volunteer relationship that did not amount to a contract to provide services. Some of these elements have in the past been regarded as having the potential to turn the volunteer relationship into a contractual one.

This judgement was based on a specific set of circumstances and not all volunteer agreements or working practices will seen as being the same. Future employment tribunals will look at the specific circumstances and if they feel that elements of the volunteer relationship are contractual they will still be free to make that judgement.

The EAT’s decision does not mean that it is acceptable to require a minimum time commitment. In this case the ‘commitment’ was felt to be no more than a ‘reasonable expectation’, and there were no sanctions if the six hours were not provided. The decision might be different if volunteers were expected to make a firm commitment and/or faced disciplinary action if they did not turn up.

The Grayson case and subsequent tribunals

The precedent set by the Grayson case gave a clearer idea of where organisations stand. It is not impossible for future EATs to overturn previous decisions but it is very unusual. Other subsequent cases which have considered volunteer status have seen the Grayson findings as sound.

Melhuish v Redbridge Citizens Advice Bureau (2004)

This was very similar to the Grayson case. The volunteer was expected to be at the CAB for at least two days per week. In his interview he was told that his expenses would be paid back and his training would be free. He asked what days he should work and was told he could choose them. The EAT explicitly followed the ruling in the Grayson and Prior cases and said that the volunteer was not a worker.

Read the case in full.

X v Mid Sussex Citizens Advice Bureau and another (2012)

This case took a different approach and argued that the volunteer role amounted to an ‘occupation’ under the terms of the European Equal Treatment Directive that supports our equality law. The case went to the Supreme Court but was unsuccessful.

Last reviewed: 19 May 2022

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This page was last reviewed for accuracy on 19 May 2022

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