Tribunal Report: The importance of being employed in a legal sense

The Employment Appeal Tribunal has addressed the crucial but often tricky question of whether a member of staff is actually an employee

Victoria Willson
Victoria Willson

A person's rights in the workplace - and, correspondingly, the obligations that charities have towards the person and the types of claims they can face if those obligations are not met - depend on their status. For example, they could be a worker, an agency worker, a voluntary worker or an employee.

The story

Moore, a Methodist minister, was appointed to a group of congregations in Cornwall. Part of the way through her five-year term, various problems had arisen and she felt she was being put under unfair pressure to resign. Moore was subsequently informed that procedures to curtail her appointment were starting. She resigned a short time later and brought a claim for unfair dismissal (a type of claim that only an employee is entitled to bring).

The legal decisions

The employment tribunal considered that it was bound by the Court of Appeal's decision in an earlier case involving the church, Parfitt v The President of the Methodist Conference.

In essence, the court had decided that the spiritual nature of Parfitt's appointment and relationship with the church meant that arrangements between them were non-contractual, and that even if there had been a contract, it was not a 'contract of service' (the definition of employment under the relevant legislation). The tribunal in Moore's case therefore ruled that she was not an employee and dismissed her claim.

Moore appealed, and the new hearing found that in the light of a more recent case, the Parfitt decision was not binding. It went on to consider whether Moore was an employee.

The appeal tribunal acknowledged the spiritual nature of her role, but found that there was nothing in it that was inconsistent with her being an employee. On the facts, it said, she was an employee. It took into account a variety of factors, including: the fact that there was a clear concept of working time (albeit not set working hours); accommodation, sick pay, holiday pay and regular remuneration were provided; she was subject to supervision and liable to disciplinary procedures; and she was required to engage in an appraisal process.

The case has now been sent back to the employment tribunal to assess whether she was unfairly dismissed.

Lessons for charities

In determining an employee's status, the reality of the relationship between the parties is what counts, not how it is described or what is agreed. Key factors include whether the charity is obliged to provide work to the person and whether the person is obliged to accept it, whether the person can provide a substitute and how much control the charity has over how, when and where the work is done.

There is no definitive checklist that charities can use to determine a person's status. It is a complex issue and legal advice should be sought.

Victoria Willson is a partner at Levenes Employment, third sector specialists

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