The Court of Appeal has upheld a ruling of the Employment Appeal Tribunal (EAT) that a man who volunteered as a coastguard with the Maritime and Coastguard Agency (MCA) was a ‘worker’ for the purposes of Section 230(3) of the Employment Rights Act 1996 when performing activities for which he was entitled to claim payment.
The man had been a volunteer for the MCA from 1985 until his position was terminated in 2020. He brought an Employment Tribunal (ET) claim on the grounds that he had been refused permission to be accompanied by a trade union representative at a disciplinary hearing, a right that would only apply if he were a worker.
The ET noted that the agreement between him and the MCA was described as a voluntary one. Although coastguards were entitled to claim payment for certain activities, there was no automatic remuneration for any activity and many volunteers never made such claims. He was therefore not a worker. The man appealed that decision to the EAT.
Allowing the appeal, the EAT considered that, in focusing on the lack of automatic remuneration and the fact that many coastguards did not claim, the ET had lost sight of the fact that coastguards had the right to be remunerated for many activities. When the man attended such an activity, a contract arose under which he provided services to the MCA. The EAT substituted a finding that he was a worker.
Ruling on the MCA’s appeal against the EAT’s decision, the Court of Appeal found that the documentation governing the relationship between coastguards and the MCA showed that, while coastguards were not obliged to attend for work on any given occasion, if they did attend they were bound to obey reasonable instructions and were entitled, although not compelled, to claim remuneration for much of that work. Neither the description of the coastguards’ relationship with the MCA as voluntary nor the assertion that they were unpaid accurately reflected the reality of the wage/work bargain that had been struck. In the Court’s judgement, it was plain that there was an intention to create legal relations from the time that the coastguard agreed to serve the MCA on the terms set out in its documentation. As the EAT had found, a contract came into existence when a coastguard attended for an activity in respect of which there was a right to claim remuneration.
The Court rejected the MCA’s argument that there was no mutuality of obligation between it and coastguards who had attended for work. The coastguards were obliged to comply with reasonable instructions while on duty and the MCA was obliged to make payment on receipt of a claim for attendance for relevant activities. The Court also took account of two recent decisions of the Supreme Court that being under no obligation to attend for work is not a bar to ‘worker’ status. The appeal was dismissed.
