United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J PARKIN (of Counsel) Ms C Hockney Principal Legal Officer Equal Opportunities Commission Overseas House Quay Street Manchester M3 3HN


 


JUDGE J HICKS QC: The Applicant and Appellant, Mrs Uttley, was and presumably still is, because this is not a case which turns on any termination of relationship, a member of the Respondent, St John Ambulance. She brought a complaint under the Sex Discrimination Act 1975 against St John Ambulance and against a Mr Pagett who has, before the hearing of this appeal, unhappily died.

I mention the capacity of the parties at the outset because, although Mr Pagett was a party at the date of the hearing before the Chairman of the Industrial Tribunal, he did not appear and was not represented, and the decision proceeds on the basis, which as we understand it is not contested, that a finding in favour of St John Ambulance that there was no jurisdiction would eliminate the claim against him.

Secondly I mention it because it is not stated in the Decision and Mr Parkin, for Mrs Uttley, was not able to inform us what is the juridical nature of the First Respondent, St John Ambulance. The fact, as is found by the Chairman and is not in dispute, that Mrs Uttley was a member strongly suggests that St John Ambulance may be an unincorporated Association, in which case on ordinary principles one would have thought that Mrs Uttley's complaint could only be made against the other members of the Association, and not against the whole body which included herself as a member. On the other hand there is a reference to a Royal Charter and it is possible, albeit the relationship is expressed in terms of membership, that there is some sort of corporate existence of St John Ambulance.

However Mr Parkin did not suggest, and certainly it does not seem to have been contemplated before the Chairman below, that that made any difference to the result and we proceed on the basis that we are able to deal with the appeal notwithstanding any lack of clarity in that respect.

The facts of the alleged sexual harassment have never been investigated and are not before us and we therefore say nothing about them, because there was a hearing conducted by a Chairman of the Industrial Tribunal sitting alone of the preliminary issue raised by the first Respondent that the Applicant, Mrs Uttley, was not employed by the First Respondent within the definition of employment in the statute and that there was, therefore, no jurisdiction to entertain the complaint.

The facts found by the Chairman were so far as material as follows, starting at paragraph 6 of his Decision:

"6. The First Respondent is a voluntary organisation and a registered charity. Its primary working document is its General Regulations. These establish its objectives (Regulation 1-1), which include, as relevant to the present proceedings:

a. The instruction of members of the public in the principles and practice of First Aid, Nursing, Welfare, Hygiene ...

b. The preparation, publication and distribution of textbooks and other training aids to facilitate such instruction and the organisation of examinations and tests for the purpose of issuing certificates of proficiency in such subjects.

c. The organisation, training and equipment of men, women and young persons to undertake, on a voluntary basis, either as individuals or as organised groups, First Aid, Nursing and allied activities, in the streets, public places, hospitals, homes, places of work or elsewhere as occasion may require for the relief, transfer, comfort or welfare of those in need.

The Tribunal has omitted objectives d. - f. of Regulation 1-1 for present purposes (which are not relevant to the preliminary issue) and supplied the emphasis in objective c. above" [the emphasis being the italicisation of the words 'on a voluntary basis'.]

He continues, omitting paragraph 7, which is not material for our purposes:

"8. The Applicant first became interested in St John Ambulance in May 1992, having been introduced to it by the Second Respondent, who was her neighbour. Her interest was in obtaining first aid skills as she was a member of a judo club and also had four children who might have need of her skills if she acquired them. In keeping with its objectives, the First Respondent offered first aid training and this is what initially attracted the Applicant. ..."

Then the details of that are dealt with, including the fact that she paid a fee. The precise amount is not stated but it was in the region of £30 - £40 to enrol on that course. The Chairman continues:

"9. Once she had started the course, however, the Applicant decided to join the First Respondent as a member in June 1992. Her payment for the course was reimbursed and thereafter was free. She successfully completed the course in July 1992. ..."

Then there is some description of a certain vagueness in the documentation of her membership which is of no relevance whatsoever, because the finding that she became a member is not disputed. In paragraph 10, having made that finding the Chairman goes on in paragraph 11:

"11. During the Applicant's membership of the First Respondent from June 1992 to date she has attended regular Divisional meetings and taken various original and refresher training courses. These are detailed in the agreed bundle. There is a charge for the training courses when offered to members of the public, but the courses are free to members of the First Respondent. She was issued with certification of her first aid skills and a warrant card by the First Respondent. During her membership the Applicant was promoted to corporal, which is a non-officer rank in the First Respondent's structure, and she has had supervisory responsibility for other members of the First Respondent when attending public events. In addition, she has acted as a leader, supervisor and trainer for the 'Badgers', which is the children's arm of the First Respondent's organisation.

12. She has regularly attended public events (such as concerts, football matches and other public sporting events) as a member of the First Respondent and has worked in excess of 50 hours per year in such capacity. While on duty at such events the Applicant provides first aid services to members of the public and participants in the event. She was not paid a wage or salary for any of these activities, but she was paid actual out-of-pocket expenses and would receive what might be termed 'fringe benefits' in the form of refreshments or meals provided by the organisers of the public events which she attended. In addition, of course, she obtained free entry to those events when on duty on the First Respondent's behalf.

13. It is necessary to say something about the Applicant's attendance at those public events. The organiser of a public event would periodically approach the First Respondent to provide first aid and/or ambulance services at the event. The First Respondent would be paid a fee or a donation for providing those services. Members of the First Respondent would be told by the appropriate officer of which events required support in this way and members, including the Applicant, would volunteer to be on duty at these events, depending upon their availability and personal preferences. While on duty at such events, the Applicant would wear the uniform of the First Respondent [there is then a reference to the Regulations] and would carry a first aid kit. The uniform is largely supplied by the First Respondent either directly or through donations. The Applicant originally provided her own first aid kit, but its contents are replenished by the First Respondent. She would be subject to the discipline and requirements of the First Respondent while on duty [reference to a Regulation], but could not be required to attend for duty, except voluntarily. The Applicant is covered by the First Respondent's liability insurance on these occasions [reference to a Regulation] and also has the advantage of a personal accident insurance provided by the First Respondent [reference to a Regulation]. She is the subject of a grievance and disciplinary procedure [reference to a Regulation].

14. There was some conflict between the Applicant and Mr Ridgway about the extent of the Applicant's obligations to the First Respondent. ..."

The rest of that paragraph deals with the Applicant's evidence about that, which is of no relevance, not that the Chairman disbelieved her own state of mind but that he found that the true terms of the relationship were those in the evidence of a Mr Ridgway, on behalf of the First Respondent, and those are set out in paragraph 15:

15. ... Not all members of the First Respondent carry out public duties, but those that do must have been recorded as 'efficient' for the preceding year. This means that they must have a valid first aid certificate and meet certain other efficiency requirements set out in Regulation 2-4. ... Those requirements include carrying out 30 (not 50) hours of duty each year (excluding weekly Divisional meetings). Duty hours include any hours devoted to the First Respondent's service and not simply 'public' duties. A member who does not meet these requirements will remain a member (and will obtain the benefits of membership), unless their membership lapses, but will not be able to perform public duties. A member's membership will lapse if they are returned as non-efficient for two consecutive years, ... but they would not be removed from membership if they indicated that they wished to remain a member."

We take that to mean (and I do not think this is in dispute) that for two years after ceasing to be recorded as "efficient" a person automatically remains a member. After that membership will lapse, but the person concerned has the option - and it seems to be an absolute option; there is no discretion about it - to remain a member if he or she wishes to do so, provided presumably that the other obligations of membership are all complied with. So that there are in effect, at least two categories of members, those recognised as "efficient" and those not so recognised.

Those are the facts found by the Chairman and they are not challenged. The Chairman seems to have had before him a set of the full Regulations, or at least a more complete set than we have, but we have Regulation 1-1, from which the Chairman quoted, and I have already referred to parts A, B and C.

Mr Parkin referred us also to Regulation 1-2 where, after referring to the Head of the Foundation, the Regulation refers to the activities of two branches of the total organisation described as:

"a. Association: Teaching and allied work.

b. Brigade: The provision of a voluntary uniformed service to the public."

And that Regulation continues:

"The closer the integration of effort between the two branches of all levels, the more efficient and successful will be the Foundation's work in the interest of those whom it aims to serve."

For what it is worth those words seem to suggest a single organisation referred to by the word "Foundation", divided into two branches, and this, as Mr Parkin also points out, is part of a Chapter 1 headed "Brigade Organisation", and indeed, as we understand from him, the whole of the General Regulations before the Chairman were concerned with the Brigade insofar as there was a distinction between it and the Association.

The first two lines of Regulation 1-1, however, do also emphasise the intimate relationship between those two branches by saying that "The objectives of the St John Ambulance Association and Brigade are .." before starting on the individual objectives.

The other part of the Regulations before us includes the title page of Chapter 2 which is concerned with and entitled "membership" and one or two pages of extract from that chapter, but by no means the whole chapter.

Regulation 2 - 1 headed "Primary Duty" reads:

"The primary and distinct duty of all members of the Brigade is the rendering of First Aid and care to the community. They are, therefore, required to qualify and keep themselves efficient and up to date in this respect."

Although there are the words "required to qualify and keep themselves efficient and up to date" it is, as found by the Chairman and indeed accepted by Mr Parkin, the case that a person is perfectly entitled to remain a member, albeit with reduced entitlement and restricted activities, if the efficiency requirements are no longer kept.

As to the remainder of that chapter one can only obtain the flavour by the headings in, as far as we are concerned, the title page, although the whole was before the Chairman, but it includes all the sorts of things which one would expect of provisions relating to membership of a member's voluntary organisation, such as qualifications for joining, the nature and the formalities of joining and of membership.

Then there is a part which is concerned with annual efficiency, because of the importance of this distinction between what are called "active list members" and "others". Then there is a part relating to adults giving, on the face of the title headings of the Regulations, provisions about such matters as training, meetings and exemptions from those under re-examination requirements. There is a Regulation in that section under the title "Reserve List", which again seems to relate to the distinction between active list members and a different category. Then there are other parts which include such matters as "honorary members" and "age limits" and so on, all very familiar types of provision for a members' organisation.

The decision of the Chairman begins in paragraph 20 by setting out the definition of employment in Section 82 (1) of the Act, which is as follows:

"20. ... In this Act, unless the context otherwise requires - ... 'employment' means employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour ..."

And, as the Chairman records:

"It is agreed that this is a not a relationship of apprenticeship, so that the Tribunal must decide whether the Applicant was employed under a contract of service or a contract personally to execute any work or labour."

And paragraphs 21 to 35 of the Decision deal with the question whether there was a contract. There are findings in that section of the Decision that the elements of contract requiring agreement between the parties and intention to enter legal relations were present, but that the requirement of consideration moving from the Respondent was not, and also that there was not what the Chairman calls "an agreement based upon mutual and irreducible minimum obligations". It is not entirely clear to us in what sense that is a separate requirement for the formation of contract in law or to be distinguished from the requirement of consideration, but we need not embark upon a disquisition on those topics because we are content to assume, without deciding, that the Chairman arguably erred in law in those conclusions, and therefore that it is arguable that there was a contract between Mrs Uttley and the Respondent. But, as Mr Parkin accepts, the appeal must on that assumption still fail at this stage unless he can show that there is an arguable case that the Chairman erred in law in his further conclusion that, if there was a contract, it was not one of employment within section 82 (1).

It was, as I have already noted, agreed before the Chairman that there was no contract of apprenticeship and Mr Parkin concedes before us that there is no arguable ground of appeal against the Chairman's finding that there was no contract of service.

So the remaining question, and the only question, concerns the Chairman's conclusion on the question whether, if there was a contract, it was one personally to execute work or labour and I therefore turn to the way in which the Chairman dealt with that. He begins in paragraph 36 by saying:

"36. Should the Tribunal be wrong in its conclusion that there was no contract between the parties, it is appropriate to go further and to consider whether, if there was a contract, was it a contract of employment or a contract personally to execute any work or labour? The Tribunal accepts that [and he quotes]:

'The concept of a contract for the engagement of personal work or labour lying outside the scope of a master-servant relationship is a wide and flexible one, intended by Parliament in our judgment to be interpreted as such'."

And that, he says, is a reference to the judgment of Waite J in the case of Quinnen v Hovells [1984] ICR 525 at 531. He goes on:

"However, its application will always depend upon the facts and circumstances of the particular case. It is also not clear whether Parliament intended the scope of such a contract to include 'volunteers' working for organisations in the voluntary sector (and there is no evidence of that intention in the parliamentary debates on any of the discrimination statutes)."

He then deals with the issue of whether the contract was one of service and, as I have said, Mr Parkin does not submit that his adverse conclusion on that is appealable. And he picks up then, at paragraph 39, the remaining question, saying:

"39. Was the Applicant engaged by the First Respondent under a contract personally to execute any work or labour? In approaching this question, the Tribunal is especially mindful of the dictum of Waite J in Quinnen v Hovells [1984] ICR 525 at 531 cited above. The Tribunal's approach to this question must be a generous one and at large, but it is necessary to consider the dominant purpose of the contract (if such it was). See Gunning v Mirror Newspapers Ltd [1986] 1 All ER 385. The Applicant contends that the dominant purpose of the contract (if such it was) between the parties was for the Applicant to supply her labour by attending events and carrying out duties on behalf of the First Respondent. The First Respondent contends that the dominant purpose was training in first aid.

40. In considering this question, the Tribunal must expressly disagree with the First Respondent's contention that the primary objective of the organisation is to train persons in first aid and that this primary objective is indicative of the dominant purpose of the contract (if any) between the parties. It is clear that the training of persons in first aid is just one of many objectives of the First Respondent and it is equally plain that it was not the primary purpose of the relationship of the Applicant and the First Respondent. The opportunity to provide public service was an equally plain purpose of that relationship.

41. On the facts, the Tribunal is not satisfied that the dominant purpose of any contract between the parties was personally to execute any work or labour. First, contrary to the Applicant's contentions, the Applicant was permitted to substitute another person to undertake her duties, albeit with the agreement of the First Respondent (see Tanna v Post Office [1981] ICR 374). If she was unable to meet a commitment for which she had volunteered, another volunteer might be substituted when she informed the First Respondent of her unavailability. It is true that she herself could not substitute someone else and, in that sense, she was undertaking a personal commitment. Second, there were many features of her membership of the First Respondent which cannot be described as involving the execution of work or labour. When attending public events, she might then be accurately described as executing work or labour on behalf of the First Respondent, but other incidents of her membership - including training, attendance at Divisional meetings or formal parades, providing supervision and instruction to the Badgers, giving external talks on first aid, etc - cannot be described as work or labour. These are characteristic of the typical activities which members of voluntary organisations, clubs, associations and so on will be engaged in without ever thinking or considering that they were involved in work or labour.

42. In the Tribunal's view, this case has to be looked at on its particular facts and in its own peculiar circumstances. It is distinguishable from those other cases (such as Armitage, Chaudri and Rodney) where apparent volunteers working for voluntary organisations have been treated as in employment. Those cases are all explicable on their facts. The present case is of a different character. While it is accepted that the discrimination statutes can apply to the voluntary sector (as employers), it is extremely doubtful whether Parliament intended genuine volunteers in the position of this Applicant to be covered by the wider definition of employment used in the discrimination statutes. Although the Tribunal is mindful that its decision on the preliminary issue will deny the Applicant an opportunity to test her complaint against the First and Second Respondents, the Tribunal is not satisfied that she falls within the class of complainants who were intended to be given rights to challenge alleged discrimination. In any event, regardless of legislative intention, the Tribunal finds that, on the facts, the Applicant was not in the employment of the First Respondent within the meaning of section 82(1) of the Sex Discrimination Act 1975. For that reason, her application must fail and is dismissed for want of jurisdiction."

Mr Parkin accepts that the dominant purpose, which clearly was the test applied by the Chairman, is the correct test, but he says that on the Chairman's findings of the facts as to the relationship between the parties and, as he says, the duties which the Applicant, Mrs Uttley, was obliged to carry out on those findings, the Chairman erred in law in concluding that this was not a contract for the execution of personal work and labour. And he referred us to the case of Carmichael v National Power [1998] IRLR 301.

That was a decision reached on 27 March 1998, after the promulgation of the Chairman's decision in this case, and therefore, even if Mr Parkin's submission were right, manifestly no personal criticism could attach to the Chairman. But we have to deal with the law as declared by the Court of Appeal in that case and therefore Mr Parkin is perfectly entitled to draw our attention to it and we must pay attention to it. It was a case of persons who had the post (to use a neutral word) of station guides at two power stations, owned and operated by the Respondents, National Power Plc, and their terms of appointment for present purposes were contained in a letter from the power station manager, reading:

"I am pleased to note that you are agreeable to be employed by the CEGB at ... power stations on a casual as required basis as a station guide. When your services are required you will be paid at the rate of ... . Your salary will be paid by credit transfer. ... As mentioned at interview it will be necessary for you to receive some formal training ..."

They accepted those terms. The Tribunal found that there was no mutuality of obligation, that the Respondents were under no obligation to provide the Applicants with the work and that if the Applicants did not wish to work as a guide the Respondents could not make them and, for that reason, found that they were not employees. That was a case under the Employment Protection (Consolidation) Act 1978, in which the definition of employment is not precisely the same, but no doubt Mr Parkin's submission is that, therefore, this is a matter a fortiori, because the Court of Appeal as summarised, we accept accurately, in the headnote, held that:

"In order to decide whether casual workers were 'employees', the proper approach is to ask whether there was a contract between the parties; if so, what were the terms, express or implied, of that contract; and was it a contract of employment?

In the present case, having regard to the terms of the letters in which the respondents offered and the applicants accepted employment as station guides 'on a casual as required basis', and the circumstances in which they were exchanged, the only conclusion could be that they did give rise to a contract between the parties.

The ordinary natural meaning of the words 'on a casual as required basis', interpreted in the light of the circumstances in which the contract was reached and the purposes to be achieved by it, was that there was an implied term that the respondents would provide a reasonable share of such guiding work as became available from time to time and a corresponding term that, subject to the qualification of reasonableness, the applicants would accept the work offered. Accordingly, the contract did impose mutual obligations on the respondents and the applicants to offer and to undertake work."

And at paragraph 76 of the leading judgment Ward LJ said this:

"What seemed crucial to the tribunal was 'the very clear position of the respondents' that 'if the applicants did not wish to work as a guide, then they could not make them work'."

He continues:

"Of course they could not. No more could they force any other employee to work if that employee did not wish to work. That is a confusion between, on the one hand, what the terms of the contract were - which was the question upon which they had to focus - and, on the other hand, if there was a breach of those terms, whether there was an adequate remedy for it."

We comment that that, as we accept, is indeed an important distinction. In the context we take Ward LJ, by referring to whether there was an adequate remedy, to be referring as it were to the economic adequacy of a remedy; he is not stating that there was no remedy. It is trite law that for the breach of any contract, even if no financial loss is suffered, the plaintiff is entitled to at least nominal damages. It is equally clear that such a breach might, for instance, be repudiatory and therefore entitled the other party to terminate the contract without penalty, which could not have been the case unless there was an enforceable term and breach of it.

So the Court of Appeal, as we understand it, is not saying that the breach of such a term as they found in the Carmichael case is without consequence. They are saying that in their belief the Tribunal below had moved, without logical justification, from the lack of an adequate remedy, in the sense in which the phrase seems to be used - from that proposition to the quite separate proposition that therefore there was no contract and no binding obligation on either side to be broken. But here there is no finding that failure to maintain efficiency would have been a breach. Indeed, the question whether it would have been a breach is only another way of addressing the very same issue whether the maintenance of efficiency was a contractual obligation, because it is that obligation, as Mr Parkin submits it was, which he argues makes this a contract for the execution of work and labour, since to maintain efficiency included among other things the duty hours referred in paragraph 15 of the Chairman's Decision.

In our view that submission fails in two respects. First, the only duties which Mr Parkin submitted or advanced as amounting to work or labour were the public duties, and the requirement as found by the Chairman did not specify any minimum in that respect. As he found, and I have already recited, duty hours included any hours devoted to the First Respondent service and not simply public duties. But secondly, and more fundamentally, there simply was no obligation. Nor is there any requirement of efficiency as a condition of membership. As I have already recited (and as Mr Parkin accepts) a member automatically remains such for two years after loss of efficiency and could still, at his or her option, remain in membership thereafter and it would seem, although we have only (as I have said) looked at the title headings, that as one would expect there was provision for reinstatement in what one might call "active membership", with entitlement to attend public occasions, on re-examination or such further training as was required to restore efficiency.

Mr Parkin then submitted that the Chairman erred in law in that he pays no attention in his Decision to the distinction between the Brigade and the Association. In our view there is nothing in that point either. The Chairman accepted that training - an association purpose - was not the primary purpose of the relationship between this member and the Respondent and discussed and decided the issue of work or labour solely by reference to Mrs Uttley's duties as a Brigade member, that is to say the duties set out in paragraph 15 of the Decision, in the sense of what was required to maintain efficiency.

We do not, of course, by using the word "duty" in that context intend to beg the question whether maintaining efficiency was a contractually enforceable duty and failure to do so a breach because, as we have already said, we find no error on the part of the Chairman in the conclusion that there was no such contractual obligation and that failure to maintain efficiency was not a breach, not least because of the quite plain provisions and practice of the Respondent in allowing persons who had failed to maintain efficiency to remain members in every sense, except those which depended upon efficiency such as qualification to attend on public occasions in uniform.

A further point raised by Mr Parkin was that the statute should be, and the definition of employment under it should be, construed more widely, because it should be construed so as to give effect to the purposes of the European Directive on the subject, and he referred us to Articles 1 and 5 of that Directive. It is a Council Directive of 9 February 1976 and Article 1 reads:

"The purpose of this Directive is to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions and, on the conditions referred to in paragraph 2, social security. ..."

And Article 5, paragraph 1 says:

"Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex."

We wondered at first whether Mr Parkin was taking the point that it is arguable on the strict grammar of Article 1 that "working conditions" is used there as a totally free-standing independent head or category of condition, independent of employment, but he says that is not his submission and that he accepts that "working conditions" there is used in the employment context, and we have no doubt that he is right about that, not least because the recitals to the Directive point in that direction and because Article 5, paragraph 1, by its reference to the conditions governing dismissal, seems plainly to be contemplating an employment relationship.

Mr Parkin tells us that there is no definition of employment in that Directive and therefore it seems to us that that is really of no assistance in the task of construing the word "employment" in the Act with which we are concerned. He submits that since this statute was enacted to give effect to the European Directive it should, like European legislation, be given a purposive construction. But in our judgment that does not advance his case, because we see no detectable legislative purpose at either the European or the national level of including the voluntary members' activities of the members of a voluntary organisation. Quite the contrary.

The relationship of membership is fundamentally distinct from that of employment. That is not to say that a person may not be both a member and an employee, nor is it to say that there may not be borderline cases. It is in our view clear beyond argument, on the findings of the Chairman and on the facts as agreed before us by Mr Parkin on behalf of Mrs Uttley, that this was nowhere near any borderline, nor is it suggested that Mrs Uttley had any second or other relationship with the Respondent beyond that of membership. Everything that she did in relation to the St John Ambulance was done in the capacity of a member.

We therefore find no arguable error of law on the part of the Chairman and dismiss the appeal at this stage.