Volunteer was a worker when undertaking remunerated activities

Volunteer or worker status

In general, 'volunteers' (whether for charities or otherwise) are not treated as 'workers'. However, the use of the term 'volunteer' for an individual does not confirm a particular legal status, which instead depends on the particular circumstances in which the 'volunteer' provides its services. There are, therefore, situations in which individuals ostensibly acting as volunteers do in fact meet the legal definition of 'worker'.

A 'worker' has a hybrid employment status, attracting some but not all statutory rights associated with an employee. Workers qualify for rights including the right to the National Living Wage, paid annual leave and the right to be accompanied to disciplinary and grievance hearings. They do not qualify for statutory family-related leave, statutory redundancy pay, statutory notice, or unfair dismissal rights.

Groom v Maritime & Coastguard Agency

In this case, the claimant was a volunteer for the Coastal Rescue Service (CRS). The relationship was governed by a volunteer handbook, which described the relationship as entirely voluntary. There was also a code of conduct which volunteers were required to follow. Amongst other things, this required attendance at specific training and to maintain a reasonable level of incident attendance. The code of conduct also said that volunteers could submit monthly payment claims for certain activities to cover minor costs and to compensate volunteers for disruption to their personal life caused by unsocial hours call-outs. 

The relationship between the claimant and the CRS was terminated following a disciplinary hearing. The claimant asserted he should have been given the right to be accompanied to the disciplinary hearing. To qualify for this right, the claimant needed to be classified as a worker in law.

Legal claim

In order to meet the legal definition of a worker the following three criteria must be satisfied:

• A person must have entered into or worked under a contract
• The contract must require the person to personally perform work or services for another party to the contract
• The other party to the contract cannot be a customer or client of the person's business

Here, it was accepted that the claimant was required to personally perform his volunteer services, and that the CRS was not a customer or client of the claimant's business. Therefore, the only remaining hurdle to establishing worker status was the question of whether there was a contract in existence at all.

At a preliminary hearing, the Tribunal found that there was no contract in existence and that therefore the claimant could not be a worker. In reaching its decision, the Tribunal relied on the absence of any automatic right to remuneration for any activity, as well as the fact that, in reality, many volunteers never made claims. The claimant appealed to the EAT.

Appeal outcome

In a judgment published in May 2024, the EAT allowed the claimant's appeal. There was a contract in place during the activities that attracted a right of remuneration. (The EAT stated that "payment in compensation for interference in a person's use of their time is the essence of remuneration", and contrasted this remuneration with the out-of-pocket expenses that the individual was also entitled to.) It was irrelevant that the claimant had to submit a claim for payment and that many volunteers in practice did not do so. It also did not matter that the volunteer was not contractually obliged to attend the volunteering activity. For the purposes of establishing worker status, a contract came into existence when a volunteer attended an activity in respect of which there was a right to remuneration.

As the other elements of the statutory worker definition were not in issue, the claimant was a worker when he was carrying out those activities.

Learning points for charities

This decision should act as a prompt for charities to consider the employment status of any volunteers they use, in particular where volunteers are entitled to compensation that goes beyond standard out-of-pocket expenses. If a charity's volunteers are in fact workers, this would have consequences for the charity including in relation to cost and administration, and the employment law and equality law treatment of the individual.

Of course, charities should be clear on the scope of this decision: in this case, worker status was established due to the right to be remunerated for certain activities. The EAT emphasised that it had not determined whether worker status could be made out where a volunteer attends an activity which does not give rise to the right of remuneration. This remains an open issue to be decided in future litigation.

For more information, please contact Gabriel Cohen in our Charities team on 0117 314 5661, or complete the form below.