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Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> McCrory v British Red Cross [2003] NIFET 315_02 (10 October 2003)
URL: http://www.bailii.org/nie/cases/NIFET/2003/315_02.html
Cite as: [2003] NIFET 315_2, [2003] NIFET 315_02
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- The applicant has been a volunteer with the respondent since January 1990. His claim to the Tribunal was that he was not offered an opportunity to cover a duty at St Anne's Cathedral, Belfast, on 14 May 2002 for the visit of Her Majesty the Queen. The applicant alleged that this failure to offer him the opportunity to attend as a First Aider amounted to discrimination against him because of his religious belief, contrary to the provisions of the Fair Employment & Treatment (Northern Ireland) Order 1998 ['the Order']. The case came before the Tribunal as a preliminary hearing to determine whether the applicant was employed 'under a contract of service or apprenticeship or a contract personally to execute any work or labour' as set out in Article 2 of the Order.
- The Tribunal heard evidence from Anna McAlpine, the Service Development Manager for Scotland and Northern Ireland for the respondent. The Tribunal also heard evidence from the applicant.
- To establish the nature of the relationship between the parties the Tribunal considered the oral evidence together with documentation provided. The Tribunal found the following facts in relation to the application:-
- As stated above, the Tribunal were therefore required to decide whether the applicant was employed:-
- The Tribunal also considered the case of South East Sheffield CAB v Julie Grayson [EAT 0283/03] which determined the status of a volunteer under the Disability Discrimination Act. The Tribunal noted that this case did not refer to the Newham case. However the question of the legal relationship between the parties where there is a volunteer worker was considered in detail. The Tribunal noted that in the Grayson case there was no statement, such as that set out on Page 17 of the Handbook in relation to the intention of the respondent regarding the creation of a legal relationship. While in that case it was held that the absence of such a statement was not a relevant factor, its existence in the case before us must be indicative of the intention not to create a legal relationship. The Tribunal found this to be relevant in that the existence of such a statement in this case combined with the statement of hopes and expectations agreed with the volunteer were important in determining the relationship between the parties. The other factors to be considered included the fact that the applicant was not obliged to perform a minimum number of duties either weekly or at all.
- The Tribunal considered the argument that the existence of policies and procedures pointed to the existence of an employment relationship. The Tribunal noted the existence of the Equal Opportunity and Health & Safety policies, together with the requirement for references and criminal record checks. We also noted the existence of an insurance to protect volunteers for their actions during the acts of volunteering. The Tribunal found that the existence of these policies on their own could not be seen to establish the existence of an employment relationship. The Tribunal found that these policies exist to enable the respondent to carry out its functions in an appropriate manner taking in account legislative responsibilities and its obligations for the safety of members of the public. The Tribunal found that the respondent should in fact be congratulated for having these policies in place, to protect both the volunteers and the public and yet again they were not necessarily indicative of the creation of a binding contractual relationship between the parties.
- The Tribunal took into account the question of enforceability of the arrangement between the parties and the rights and obligations on the parties to the agreement. We could see no circumstance in this relationship where the respondent could take an action against the applicant for breach of any contractual term and no binding obligation existed between the parties This case could be distinguished from Murray on the basis that volunteers there were obliged to perform a weekly service to the Citizens Advice Bureau. The Tribunal noted that this central issue was defined in the Grayson case in the following way:-
- Taking all the above factors into account, the Tribunal found that the application should be dismissed.
CASE REF: 315/02 FET
APPLICANT: Martin McCrory
RESPONDENT: British Red Cross
The unanimous decision of the Tribunal is that the applicant is not employed by the respondent under a contract of service or apprenticeship or a contract to personally to execute any work or labour. The Tribunal does not find that a contractual relationship between the parties existed and the application is dismissed.
Appearances:
The applicant was represented by Ms S Bradley, Barrister at Law, instructed by The Equality Commission.
The respondent was represented by Ms McLinn, Barrister at Law, instructed by Bates Wells Braithwaite, Solicitors.
(i) The Tribunal found that the applicant, who is a Catholic, became a volunteer with the respondent in 1990 and completed the compulsory training course of two hours per week for 14 weeks by way of an induction programme. The nature of that induction programme depended on the existing knowledge of the volunteer and is not required to be completed in "any particular timeframe". There was no obligation on the respondent to provide any training.
(ii) The applicant volunteered as an Ambulance Driver for the respondent and being unemployed often attended on a daily basis especially between 1995 and 1999.
(iii) The applicant was in receipt of a Volunteer Handbook from the respondent which detailed the relationship between the parties, the nature of the organisation and gave guidance, amongst other things, on equal opportunities, training, grievance and disciplinary procedures and Health & Safety at Work. The summary of the volunteering policy is set out on Page 12 of that Handbook, where the value of volunteers to the respondent is clarified together with the respondent's responsibilities to volunteers. On Page 14 the hopes and expectations of the relationship are clarified and in the concluding paragraph on that page it states:-
"The relationship between the Society and volunteers is based upon the mutual desire to achieve the charity's obligations/objectives in the most effective, most rewarding and least costly way. There is no legally binding relationship between volunteers and the Society and no intention to create relationships and no contract of employment. As a volunteer there is no legal obligation upon you to undertake work in the Society, nor is the Society under an obligation to provide you with work."
Therefore regardless of the relationship which actually existed between the parties it was clear from this statement that the respondent did not intend to create a legally binding employment relationship with the applicant.
(iv) It was common case that the applicant was not paid for his volunteering. He was entitled to reimbursement of expenses incurred in the course of the respondent's business. The applicant argued to the Tribunal that travelling abroad on behalf to the Society to care for disabled people amounted to a payment in kind in that the applicant had his airfare and expenses reimbursed while abroad and this would therefore amount to a payment in the nature of a payment in an employment relationship. It was clear from the Volunteer Handbook that any payments made were to reimburse out-of-pocket expenses only (as set out on Page 28). The Tribunal did not accept that these expenses amounted to payment for the applicant, either while involved in the day-to-day volunteering or while volunteering when abroad. The Tribunal found that the applicant was entitled to out-of-pocket expenses only. We found that the provision of the expenses could not be viewed in isolation from the whole relationship existing between the parties. We found that there was no obligation on either party to either provide work or perform it.
In particular the applicant could refuse to attend for any reason and was not obliged to perform any duty and could take whatever holidays he desired. We did not accept that the applicant was under any duty to provide services to the respondent.
(v) The respondent has a grievance policy and disciplinary policy for volunteers which are also set out in the Handbook. It was argued on behalf of the applicant that these policies indicated the existence of an employment relationship between the parties and that such policies would not exist in a situation where the applicant was classed merely as a volunteer. The Tribunal considered the contents of these policies (at Pages 20 – 25). The applicant's representative referred to a threat of disciplinary sanction on a colleague of the applicant and his suspension when he made representations on that colleague's behalf. It was clear from the disciplinary procedures that the volunteers could not be disciplined for failing to attend a duty, even at short notice. It might be that such a volunteer would not be asked to attend again, but this does not amount to a legal remedy against an employee. The applicant stated that he had been suspended, but there was in fact no obligation upon the respondent to provide any duties for a volunteer at any time. So such a suspension, in the circumstances, could not be equated to that of an employee who was being prevented from attending his work under a contract of employment for a period of time. Although it was accepted that the disciplinary code allowed for suspension and termination of the relationship the Society had to have some form of sanction over volunteers who behaved inappropriately.
An issue was also raised regarding the possibility of a disciplinary sanction for failing to return ambulance keys as required by procedures. The Tribunal found that the applicant was not obliged to go on duty and the respondent was not required to ask him to do so. So the existence of any sanction in these circumstances could not be equated to those between employer and employee where meaningful sanctions existed.
(vi) The Tribunal was also referred to the guidance on conduct (at Page 20) which made reference to 'absence from volunteering'. Under this heading volunteers were advised "if you have to be absent from your agreed task for any reason, please give the person to whom you report as much notice as possible, but where this is not possible you should call within 30 minutes of your agreed start time". It was argued that this was again indicative of an employment relationship between the parties and gave rise to an obligation for a volunteer to attend at a certain place and a certain time. The Tribunal found that this was merely a request to volunteers to inform the Society of any absence from their duties. There was no specific sanction against a volunteer who did not attend for any reason. We did not accept that the inclusion of this Clause amounted to any form of contractual relationship between the parties, but was merely a request for the Society to be informed if a volunteer was unable to attend to enable alternative arrangements to be made.
(vii) The Tribunal found that volunteers are not entitled to any paid holidays and they have no minimum hours to attend for the Society. There is no obligation on the Society to provide duties for a volunteer or for a volunteer to attend. There is no notice of termination required by either party and there is no legal remedy for termination in the Disciplinary Code. The Tribunal found that the Codes and Procedures which were in place were designed to protect the interests of both parties, but were not designed to and did not provide the basis of a contractual relationship between the parties in this particular case. The Tribunal found that having these procedures in place was good practice on behalf of the respondent and enabled the parties to that relationship to know and understand the perimeters of it. In relation to this the Tribunal also took into account the acceptance on the volunteer's application form at Page 3 of that form where it sets out the following statement to be signed by the applicant:-
"I understand and accept the Society's fundamental principals are fundamental hopes and expectations, and in particular the Charter overleaf and I agree to abide by the Society's Health & Safety Policy and any other policies of the Society applicable to volunteers."
The Tribunal found that this volunteering application form was not intended to create a legally binding contractual relationship between the parties. It was an acceptance by the applicant of the Society's principals and hopes and expectations only. We did not accept that this was sufficient to create a contractual relationship.
(a) under a contract of service or apprenticeship; or
(b) a contract personally to execute any work or labour.
The applicant's representative relied on the case of Murray v Newham Citizens Advice Bureau [EAT 2000] in support of the argument that a volunteer could, in certain circumstances, be found to have a contract of employment. That case concerned a trainee volunteer adviser with Newham C.A.B. It was argued that the documentation in that case showed an intention to create a legal relationship between the parties. However, the Tribunal found that the case before us could be distinguished from Newham on the basis that the C.A.B. volunteers had several restrictions placed upon them which are not present in this case. In particular, their training had to be completed in a particular length of time, they were required to work on two specific days per week at particular times and starting on a specific date. In the case before us the documentation sets out the respondent's intention in respect of the relationship and there was no intention to create a contractual relationship between the parties. Neither was the applicant required to perform his duties on any particular day.
Paragraph 21
"We consider that the crucial question which was before the Tribunal was not whether any benefits flowed from the Bureau to the volunteer in consideration of any work actually done by the volunteer for the Bureau, but whether the volunteer agreement imposed a contractual obligation upon the Bureau to provide work for the volunteer to do and upon the volunteer personally to do for the Bureau any work so provided, being an obligation such that, were the volunteer to give notice immediately terminating his relationship with the Bureau, the latter would have a remedy for breach of contract against him. We cannot accept that the volunteer agreement imposed such an obligation."
The tribunal found that this statement actually crystallised the issues to be decided in the case before us and that in all the circumstances of this case, no contract of employment exists between the parties. The Tribunal found that there was no contract personally to execute any work or labour. Neither did the Tribunal find that there was a contract of service or apprenticeship.
Chairman:
Date and place of hearing: 10 October 2003, Belfast
Date decision recorded in register and issued to parties: