Maritime and Coastguard Agency v Martin Groom

Martin Groom was until 2020 one of approximately 3,100 Coastguard Rescue Officers (“CROs”) in the United Kingdom. He was part of the Maritime and Coastguard Agency (“the MCA”)’s Coastguard Rescue Service, made up of around 325 rescue teams, and had been a volunteer for the Service since 1985. He was based at Bembridge on the Isle of Wight.

In May 2020 he was asked to attend a disciplinary hearing, for reasons which are irrelevant to this appeal. His position as a CRO was terminated by the MCA with effect from 5 June 2020. Mr Groom claimed the right pursuant to s 10 of the Employment Relations Act 1999 to be accompanied to a ‘Challenge Meeting’ (an appeal hearing) on 21 July 2020 by a member of his trade union, the GMB. The MCA did not permit Mr Groom to be accompanied by a GMB official at the meeting. The appeal was unsuccessful and Mr Groom was issued with a P45 on 8 September 2020.

Mr Groom presented a claim to an employment tribunal (“ET”), stating:

“It is not my intention to claim compensation at this time (subject to further advice). The main purpose of my claim is to establish the rights of a Coastguard Rescue Officer within the Maritime and Coastguard Agency; and to prevent a similar treatment to others in the service in future”.

The ET1 included a claim for unfair dismissal. That claim was struck out as it was presented outside the three month time limit. There was no ruling on whether Mr Groom had been an employee in order to qualify to bring an unfair dismissal claim, and that issue has not been argued on this appeal.

The right to be accompanied to a disciplinary meeting, however, applies both to employees and to workers within the terms of s 230(3)(b) of the Employment Rights Act 1996 (often referred to as “limb (b) workers”; in this judgment I shall refer to them simply as “workers”). Although Mr Groom’s claim focusses on the right to be accompanied, the issue of his status has wide ramifications since the same definition of “worker” applies for the purposes of qualifying for a variety of other statutory rights such as payment of the national minimum wage, paid holiday, the right to claim unlawful deductions from wages and the protection of whistleblowers.

The question of whether Mr Groom met the test for “worker” status was listed to be determined as a preliminary issue before Employment Judge Cadney. Mr Groom, Mr Mizen (Chief Coastguard) and Ms Daly-Lees (Senior Coastal Operations Officer) gave evidence. EJ Cadney dismissed the claim on the basis that the Claimant was not a ‘worker’ as he was not at any time contractually obliged to provide work or services to the MCA.

On 9 May 2024 Gavin Mansfield KC (as he then was; now Mr Justice Mansfield), sitting as a judge of the Employment Appeal Tribunal, set aside the order of the ET and substituted a finding that Mr Groom had been a “worker” at the relevant time.

The MCA issued CROs with a Volunteer Handbook. The Introduction to the Volunteer Handbook includes the following passage:

“a)

Volunteer Coastguard Rescue Officers are people who have chosen to serve their communities and the public by giving their time, skills and effort willingly and without salary. We value this contribution and commitment highly. The relationship between the Maritime and Coastguard Agency and its Coastguard Rescue Service volunteers is a voluntary two-way commitment where no contract of employment exists.”

“b)

Your safety and that of those you rescue and work with is our top priority and it is important for us all to understand our respective responsibilities. We believe we should set out clear policies and procedures which say what we expect from you and, equally important, what you can expect from us.”

A section headed ‘The Volunteer Commitment’ includes:

“Membership of the CRS is entirely voluntary. In formal terms this means there is no “mutuality of obligation” between CROs and the MCA or HMCG. This Volunteer Commitment aims to make sure the relationship between HMCG and volunteer CROs works for everyone.”

This section also includes headings ‘HM Coastguard Will’ and ‘In Return we ask you to’. The latter asks that volunteers:

•

“be professional and loyal to HMCG and abide by the Code of Conduct;

•

maintain competence by attending training and emergency response call-outs;

•

comply with all instructions and activities that apply to CRS activities.”

Under the heading ‘Code of Conduct for Coastguard Rescue Officers’ the Handbook continues:

“As a CRO you are expected to agree to keep up certain standards and follow Coastguard rules for your own safety and to maintain the professional image of the CRS.

As a Coastguard Rescue Officer you are expected to abide by the following Code of Conduct:

•

act in line with Coastguard policies and procedures and the authority of those who manage CRTs and Rescue Stations;

•

carry out activities with care and attention to all instructions, especially health and safety advice, and carry out all reasonable requests made by other CROs in a position of authority, or Coastguard staff;

•

…

•

Maintain your own competence by attending call-outs and training …

•

…

If you do not abide by this Code of Conduct we may cancel your membership.”

A section headed ‘Payment’ includes:

“You can submit monthly claims for payment for certain activities if you wish, although some CROs choose not to. This money is to cover minor costs caused by your volunteering, and to compensate for any disruption to your personal life and employment and for unsocial hours callouts. Further details of how to claim are available from your SCOO.”

The section headed ‘Training’ includes:

“Training to maintain your skill levels is vitally important for CROs and regular attendance is part of the volunteer commitment.”

The Code of Conduct for CROs begins:

“CROs are volunteers. The relationship between [the MCA] and CROs is an entirely voluntary one. We have no control over what type of incident may prompt a call out or when that may be. There is no minimum response commitment by our volunteers and they are not paid.”

The Code sets out a list of things a CRO must not do. There are also 13 requirements under the heading ‘A CRO must’ including.

“2: Act in line with CRS policies, procedures and processes and carry out all activities with due care and attention to all instructions, especially safe systems of work and health and safety advice.

3: Carry out all reasonable requests made by the Coastguard management or CROs in a position of authority when responding to call outs or undertaking training or volunteer led practice.

4(d) Maintain a reasonable level of incident attendance”.

A third document issued to CROs was headed “COASTGUARD RESCUE SERVICE – DETAIL” in the first line and “COASTGUARD RESCUE OFFICER REMUNERATION” in the second line.

The document begins: “CROs, whilst not obliged to claim, but [who] wish to claim remuneration for time, travel and expenses associated with specific activities undertaken whilst on authorised duty, are required to follow this process.”

The section ‘Remuneration Claims’ is said to apply to ‘claims for time (hourly rate) renumeration’. “Authorised Activities” are divided into seven categories, with a method for calculating sums payable under each. There are separate sections for “Expense Claims”.

We were told that in practice, when payments are made, the CRO receives a payslip itemising hourly remuneration and expenses. At the end of the year the CRO receives a P60; and a P45 upon termination. The hourly rate of remuneration is not less than the national minimum wage. We were told that approximately two thirds of CROs claim payment for those activities in respect of which claims may be made.

As I have noted, Employment Judge Cadney decided the Claimant was not a worker as there was no contract between himself and the Respondent. He directed himself that the central dispute was as to the interpretation and legal effect of the documents, and stated that this raised two questions: first, was it necessary to imply a contractual relationship at all; second, if there was a contractual relationship, was it one of ‘worker/employer’?

EJ Cadney set out four factors pointing to the conclusion that there was no contractual relationship between the Agency and CROs. Whilst none of these factors were individually decisive, they collectively pointed towards the conclusion that the there was a “genuinely voluntary relationship”:

The ET also relied on the reasoning in South East Sheffield Citizens Advice Bureau v Grayson [2004] ICR 1138 (“Grayson”) and held that there was no contract between the parties in relation to attendance at any activity.

The ET concluded that if both parties started the relationship believing it to be voluntary, that is powerful evidence that it was. There was no evidence that the relationship had changed.

On the Claimant’s appeal to the EAT the issue in dispute was whether there was a contract between the parties and whether the ET had correctly relied on Grayson. The EAT focused on whether the Claimant was a worker each time he undertook an activity with the MCA, and did not consider whether there was an ‘umbrella contract’ due to the way in which the case was put before the ET below.

The EAT rejected a submission from the MCA that the volunteer relationship is sui generis and that volunteers can never be workers. In most cases involving volunteers the courts have found there to be no contract; but this was due to a close analysis of the actual relationship leading to a finding that there was no contract rather than due to the fact that the cases involved volunteers. The fact that the parties described their relationship as voluntary is a feature but is not conclusive.

The EAT held that the fact that renumeration had to be claimed, rather than being automatic, was simply an administrative requirement. The fact that many volunteers did not claim the renumeration was immaterial. The EAT also considered it relevant that renumeration was payable for most activities undertaken. The EAT rejected the Respondent’s argument that the sums paid for attendance activities constituted expenses, instead finding that “a payment in compensation for interference in a person’s use of their time is the essence of renumeration”. The EAT held that volunteers attended particular activities in the knowledge that they are entitled to renumeration. On the basis of the above, the EAT held “the only proper construction of the documents is that a contract comes into existence when a [volunteer] attends an activity in respect of which there is a right to remuneration”.

The EAT rejected the MCA’s argument that a CRO was able to leave an activity after commencing it. This notion, said the deputy judge, “sits uncomfortably alongside” the Code of Conduct.

In conclusion the EAT held that “the Tribunal erred in failing to find that a contract for the provision of services arose between the Claimant and the Respondent when he attended an activity in respect of which he was entitled to renumeration.” It substituted its conclusion that the Claimant was a worker for the ET’s finding that he was not.

The MCA appealed to this court, arguing that “the consequences of the decision of the EAT are potentially far-reaching, in respect of statutory employment rights arising from the status of CROs specifically, who number about 3,100, and for volunteers more generally”. I granted permission to appeal on 12 August 2024. The three grounds of appeal pursued before us were:

“Ground 1: The Employment Appeal Tribunal (EAT) was wrong to interfere with the decision of the Employment Tribunal (ET), in circumstances where the ET’s decision was an evaluative conclusion of mixed law and fact and involved no legal misdirection.

Ground 2: Further and in any event, the EAT wrongly concluded that the arrangements between the Appellant and the Respondent involved mutual obligations and were contractual.

Ground 3: Alternatively to Ground 2, the EAT wrongly characterised the nature of the (disputed) obligations between the parties as giving rise to a “worker” contract when the Respondent attended certain activities, in circumstances where there was no mutuality of obligation outside such activities.”

Mr Tolley KC, with Mr Allsop and Mr Blitz, submitted that the key question for the ET was whether a contract existed between Mr Groom and the MCA. This was a question of fact and the EAT was, and this court is, bound to respect the ET’s finding unless it is perverse. The ET was entitled to find that a CRO was under no obligation to continue to assist in an activity once he had started to do so. The ET correctly identified and weighed aspects of the available documentation indicating that the nature of the relationship was non-contractual. The EAT was wrong to treat the documents as misusing the label “volunteer”: while parties cannot exclusively designate the nature of their agreement, it is as the ET found, powerful evidence of what was agreed. The EAT’s conclusion that “volunteer” is not a term of art ignores the common understanding of the word. The EAT treated the word “commitment” as if it could only refer to a legal commitment, whereas the documents used the word without the sense that it involved a binding obligation.

The Appellant cites Grayson for the proposition that volunteering is best recognised as taking place under a unilateral contract. There is no obligation on the part of the volunteer, although once the work is undertaken the other party is bound to uphold their side of the bargain. This contrasts with the position of bilateral contracts where workers and employees are obliged to undertake the work assigned once they have agreed to do so. The MCA submit that the effect of the analysis in Grayson is that:

“a CRO was not compelled by the law to continue to assist in an activity for which they had made themselves (or begun to make themselves) available. They rightly recognised that the driver for continued provision of assistance may be “a sense of public service.” That worthy sense of duty should not be mischaracterised as a form of legal obligation.”

Mr Brittenden KC and Professor Bogg point out that although the appeal concerns a particular statutory right to be accompanied, the issue in the appeal has wide ramifications since the same definition of “worker” applies for the purposes of qualifying for a variety of other statutory rights, as noted above. Their central submission is that once it is shown that the Claimant was, by the express terms of the documents governing the relationship between him and the Agency, entitled to claim and receive remuneration for attending and completing prescribed activities in accordance with stipulated minimum attendance requirements, this evidences a classic wage/work bargain. The Claimant’s services were not provided gratuitously.

The concept of mutuality of obligations is closely aligned to the issue of whether or not a worker contract exists. Mr Brittenden cited James v Redcats (Brands) Ltd [2007] ICR 1006 and the observation of Elias J that “the fact that there is no contract in place when she [the claimant] is not working…...tells us nothing about her status when she is working.”

The submissions on behalf of Mr Groom also point out that it is incorrect to say that he was not under any obligation to perform any work or services at all. He had to undergo compulsory training and had to fulfil minimum attendance obligations set out in the Code of Conduct. The question of whether the MCA could have compelled the Claimant to remain at an activity cannot be determinative as to the issue of worker status. No employer can compel even an employee to remain in the workplace or attend work. Putting to one side the possibility of whether a CRO could leave an emergency callout in the middle of an emergency, the MCA could issue reasonable instructions to the Claimant in accordance with the Code of Conduct, withhold payment and exercise powers to discipline a CRO who would not comply with instructions. Mr Brittenden and Professor Bogg submitted that it was not even argued on behalf of the MCA before either the ET or EAT that the absence of mutuality of obligation outside attendances meant that the Claimant was not a worker.

They also cited Nursing and Midwifery Council v Somerville [2022] ICR 755, in which this court rejected a submission that the fact that the claimant was not obliged to make himself available to do any work or perform any services was inconsistent with him having worker status when he was in fact working. Uber BV v Aslam [2021] UKSC 5, [2021] 4 All ER 209 signalled a change in approach, with the question now being one of statutory interpretation. Earlier cases which involved no right to receive remuneration (only the payment of expenses) should be distinguished on the basis that there was no valid consideration such as to establish a necessary element of the wage/work bargain.

Although this court, like the EAT, generally defers not only to an ET’s findings of primary fact but also to its evaluative judgment, it would be wrong to accord a great deal of deference to the ET in this case. The facts are agreed and the appeal is brought as a test case, with Mr Tolley in particular emphasising the importance of the issue to all the rescue services which use the services of paid volunteers. The documents governing the relationship between Mr Groom and the MCA are common to thousands of CROs and it is not suggested that there are particular features of Mr Groom’s individual case which affect the result. If there were, it is doubtful whether the case would have reached this court. We have to decide whether the ET’s determination was correct or incorrect in law, in particular relying on the three documents I have mentioned as evidence.

We are not considering whether a CRO such as Mr Groom is an employee of the MCA. As already noted, Mr Groom’s unfair dismissal claim was struck out because it was brought out of time. Nor are we considering whether there was an “umbrella” contract between Mr Groom and the MCA which had continuing effect between call-outs.

We are only concerned with the issue of whether, on each occasion when a CRO answers the call from the Agency to turn out, and thereby becomes entitled to claim payment pursuant to the remuneration document, he or she is doing so as a “worker” within the terms of s 230(3)(b) of the 1996 Act. As Lord Leggatt JSC said in Uber, this is a question of statutory interpretation rather than simply a question of interpretation of documents establishing, for example, a commercial contract; although in a case where (in contrast to Uber, or to Autoclenz v Belcher [2011] ICR 1157)the documents do reflect reality, they may be of central importance.

The three documents on which the Claimant relies – the Volunteer Handbook, the Code of Conduct and the remuneration document – are a coherent set of documents which depict what was actually happening on the ground. In particular, what they show is that while a CRO was not obliged to attend for work on any particular occasion, and could specify the time for which he was willing to do so, if he did attend he was bound to obey reasonable instructions; and was entitled, although not compelled, to claim remuneration for much of that work. (There were certain activities for which no claim to payment could be made, but these were of peripheral importance: the EAT expressly left open the question of the CRO’s status when attending for those unpaid activities, and I shall do likewise.) In those circumstances it seems to me quite unreal to say that there was no intention to create legal relations between the parties. As the EAT found, a contract comes into existence when a CRO attends for an activity in respect of which there is a right to claim remuneration.

I also reject the MCA’s argument that there is no mutuality of obligation between the Agency and a CRO who has attended for work. The basic obligations are (on the part of the CRO) to comply with reasonable instructions while on duty (and, on the part of the MCA) to make payment on receipt of a claim for attendance for relevant activities. There are duties and obligations of CROs which go beyond the basic one of obeying reasonable instructions, but they are not essential to the conclusion that this was what Langstaff J in Cotswoldv Williams [2006] IRLR 181 at [48] described as a wage/work bargain.

As Elias LJ said in X v Mid-Sussex CAB [2011] ICR 460, “volunteers come in many shapes and sizes, and it cannot be assumed that all will have the same status in law”. The true volunteer cases such as Grayson are quite different from the present case. The critical distinction is that the CAB volunteers in Grayson were not paid at all (other than the reimbursement of travel expenses, which it is common ground is insufficient on its own to create worker status). There was no legal obligation on the CAB to provide work when the volunteers attended, still less to pay for work done; and no legal obligation on the volunteers either. By contrast, the MCA’s remuneration document has a section dealing with “claims for time (hourly rate) remuneration”, and describes the payments as “compensation for any disruption to your personal life and employment”. As the deputy judge said in the EAT, a payment in compensation for interference with a person’s use of their time is the essence of remuneration.

It is now clear from two recent decisions of the Supreme Court that it is not a bar to “worker” status that the individual concerned is under no obligation to attend for work. The drivers in Uber BV v Aslam were under no obligation to work at any particular times nor for any minimum number of hours. Nevertheless, as Lord Leggatt JSC said at [91]:-

“…….[It] is well established and not disputed by Uber that the fact that an individual is entirely free to work or not, and owes no contractual obligation to the person for whom the work is performed when not working, does not preclude a finding that the individual is a worker, or indeed an employee, at the times when he or she is working: see eg McMeechan v Secretary of State for Employment [1997] ICR 549; Cornwall County Council v Prater [2006] EWCA Civ 102; [2006] ICR 731. As Elias J (President) said in James v Redcats (Brands)Ltd [2007] ICR 1006, para 84:

“Many casual or seasonal workers, such as waiters or fruit pickers or casual building labourers, will periodically work for the same employer but often neither party has any obligations to the other in the gaps or intervals between engagements. There is no reason in logic or justice why the lack of worker status in the gaps should have any bearing on the status when working. There may be no overarching or umbrella contract, and therefore no employment status in the gaps, but that does not preclude such a status during the period of work.””

In the Match Officials case(Professional Game Match Officials Ltd v HM Revenue and Customs Commissioners [2025] 1 All ER 289 the Supreme Court considered whether football referees and other match officials were employees for tax purposes. There was no obligation on PGMOL Ltd to offer a match to a referee, nor any obligation on the referee to accept such an offer. More strikingly, either party could cancel at any time up to the point where the match official arrived at the ground without this constituting a breach of contract. Of course the referee could not walk off the pitch during the match simply because he felt like going home; and it would hardly have assisted an individual’s career prospects if he cancelled on a whim shortly before he was due to arrive at the ground. Nevertheless the Supreme Court held that the pre-conditions of mutuality of obligation and control were satisfied. A contract of employment could be limited to the period during which the employee carried out paid work, and there might be sufficient mutuality of obligation even if the obligations only subsisted during that period. To my mind this decision, handed down after both the judgments below, puts the correct answer to the present case beyond doubt.

In the course of argument, we put the following scenario to Mr Tolley. A building labourer arrives at a building site (or a fruit picker arrives at a fruit farm) where the operator is offering casual work at £15 per hour. The manager at the entrance tells the individual labourer that he can stay as long as he likes. He works for five hours and then leaves. We asked whether such an individual is a “worker” within the terms of s 230(3)(b). Mr Tolley accepted that he would be, but submitted that since the CRO was not obliged to do anything while at work his case is distinguishable.

I do noy accept that there is a distinction in law. The CRO has a great deal of freedom to accept or not accept work. and to limit the time spent on MCA activities. He can decline to accept a call-out request (although there is a contractual obligation to accept a reasonable proportion of them). He can say “I can come but I will have to leave at 4 pm to go to work, even if the missing boat has not been found”. But that does not detract from the fact that CROs are plainly “workers” within s 230(2)(b) of the 1996 Act.

I would dismiss this appeal.

I am grateful to the Vice President for setting out the facts and issues so clearly. I agree that the appeal should be dismissed essentially for the reasons he gives, but insofar as there is any difference, I prefer the path to the same conclusion articulated in the judgment of Lord Justice Stuart-Smith, although I did not share his initial doubts.

I agree that this appeal should be dismissed, essentially for the reasons provided by the Vice President. I would however follow a slightly different path to the same conclusion, which I shall try to set out below.

The question for determination is whether Mr Groom was a “worker” within the meaning of the Employment Rights Act 1996 [“the Act”]. That depends upon whether he falls within the terms of Section 230(3)(b) of the Act, which provides:

“In this Act “worker” … means an individual who has entered into or works under (or, where the employment has ceased, worked under)—

(a)

a contract of employment, or

(b)

any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; …”

In Uber at [41] the elements of this statutory definition were summarised as being:

“(1)

a contract whereby an individual undertakes to perform work or services for the other party; (2) an undertaking to do the work or perform the services personally; and (3) a requirement that the other party to the contract is not a client or customer of any profession or business undertaking carried on by the individual.”

In the present appeal, the second and third elements are not in issue: if the CRO enters into a contract whereby they undertake to do work or perform services for the MCA, it is clear that the undertaking is to do that work or perform those services personally and it is equally plain that the third element is inapplicable. Accordingly what requires consideration in this appeal is whether there is a contract between the CRO and the MCA whereby the CRO “undertakes to do or perform … any work or services for another party.”

The MCA concentrates on its assertion that the CRO is a “volunteer” and that, accordingly, however else one characterises the nature of the relationship between the CRO and the MCA (a) there was no intention to create legal relations with the result that no contract could come into existence between them, and (b) in any event, the terms of any arrangement or agreement between them did not amount to or include an undertaking on the part of the CRO to do or perform any work or services for the MCA because (in briefest summary) the CRO was not obliged to respond to any particular emergency call-out and, even if they did, they were at liberty to walk off the job at any time. This submission was given its most extreme characterisation during the hearing by reference to the hypothetical suggestion of a CRO, when half way down a cliff in the course of an emergency rescue, being able to stop what he was doing, pack up and go home.

It is convenient to address the intention to create legal relations first. Before doing so, I repeat some of the applicable principles in this area, which I believe now to be well-established by high authority.

Neither the absence of an “umbrella contract” nor the fact that a person is under no obligation to work at any particular time or for any minimum number of hours, is of itself a bar to the person being a “worker” within the meaning of the Act, though it may be a relevant indication tending to that conclusion: see Uber at [90]-[91]. There can be “no substitute for applying the words of the statute to the facts of the individual case”: Bates van Winkelhof v Clyde & Co LLP [2014] UKSC 32, [2014] 1 WLR 2047 at [39] per Baroness Hale. “Volunteers come in many shapes and sizes, and it cannot be assumed that all will have the same status in law”: X v Mid Sussex CAB [2011] EWCA Civ 28, [2011] ICR 460 at [3] per Elias LJ. Where an arrangement is a business arrangement not a social or domestic one, there is a heavy burden on a party who asserts that no legal effect was intended: Edwards v Skyways Ltd [1964] 1 All ER 494, 500A-B. The language of “reasonable expectation” is not normally the language of contractual obligation: see South East Sheffield Citizens Advice Bureau v Grayson [2004] ICR 1138 at [15] per Rimer J. However, the true agreement between the parties will often have to be gleaned from all the circumstances of the case, of which the terms of a written agreement may only be part; and the written agreements between the parties may not even be the appropriate starting point in applying the statutory definition of worker: see Uber at [63] and [83]-[84].

The fact that one or other party to a contract (overarching or otherwise) has the ability to cancel or to withdraw from it part way through does not mean that, while the contract subsisted, the parties were not under mutual obligations to each other. Whether they were depends upon analysis of all the relevant circumstances of the case: see Nursing and Midwifery Council v Somerville [2022] EWCA Civ 229, [2022] ICR 755 at [54]-[55]; Professional Game Match Officials Ltd v Revenue and Customs Commissioners [2024] UKSC 29, [2024] ICR 1480 at [56].

The existence within a relationship of remuneration being paid to a person who has agreed to carry out work will in most cases be a strong indication both of an intention to create legal relations and, where the remuneration is to be regarded as consideration for the carrying out of the work, for the existence of a contract. The reasons for this are obvious and include the fact that an agreement by one person that, in consideration of a wage or other remuneration by another, he will provide his own work and skill in the performance of some service for that other is the classic first indication (necessary but not necessarily sufficient) of a contract of service: see Ready Mixed Concrete v Minister of Pensions and National Insurance [1967] 2 QB 497, 515C-D; PGMO at [30]. Conversely, the absence of payment is likely to be a striking indicator that a person is a “pure” volunteer and not a “worker”: the fact that a person provides their services voluntarily and without payment supports the conclusion that they are consequently entitled to withhold their services with impunity: see Grayson at [12].

Initially I thought that there might be a plausible argument in support of the proposition that there was no intention to create legal relations because the only remedy that the MCA would have if a CRO were to act in breach of the Code of Conduct would be the ultimate sanction of terminating the CRO’s membership. However, I now regard the suggestion that there was no intention on the part of the parties to create legal relations as unarguable. It would entail a conclusion that if, on the CRO claiming the financial recompense outlined in the MCA’s documentation, the MCA refused to pay it, the CRO would have no legally enforceable right to claim it. That proposition seems to me to be completely unsustainable as was the similar proposition, which was rejected by the EAT, in Murray v CAB [2001] ICR 708 at [10]-[12]. For a start it is inconsistent with the MCA’s remuneration document, which refers to the payments as “remuneration”. Second, the fact that CROs are given the right to claim payment carries the plain implication that a CRO making a claim in accordance with the MCA’s documentation is entitled to be paid what they claim. I agree with the Vice-President in describing this arrangement as a classic “wage/work” bargain. It needs no imagination to predict what the reaction of the CROs as a body would be if the MCA were now to assert openly that the provisions as to remuneration gave the CROs no enforceable right to be paid.

I accept that the MCA have gone to some considerable lengths to avoid this conclusion in their Code of Conduct and Volunteer Handbook by describing the relationship between the MCA and the CROs as an entirely voluntary one. However, neither this written insistence that the CRO’s relationship with the MCA is voluntary nor the assertion in the Code of Conduct document that CROs “are not paid” accurately reflect the reality of the wage/work bargain that has been struck.

In my judgement, it is plain that there is an intention to create legal relations from the time that the “volunteer” agrees to serve the MCA on the terms set out in the MCA’s documentation. Viewed as a whole, the relationship is not consistent with a “purely voluntary” set of mutual agreements.

Once again, after initial doubts, I think it is plain on the agreed facts that CROs do undertake to do work and/or perform services. As became clear during the appellant’s reply, the MCA puts out a call for volunteers to attend to deal with an emergency. CROs are not obliged to respond to a particular call; but if they do, they are undertaking to carry out the work that is necessary to respond to the call and to act in accordance with the Code of Conduct of which they are aware and on the basis of which they have agreed to act as a CRO. The MCA is not obliged to accept the undertaking/offer of all who may respond positively – there may be more CROs who respond positively than are needed for the particular undertaking. But for those whose undertaking is accepted, the MCA offers remuneration which is in consideration for the work they do or the services they provide.

It does not matter whether this is analysed as (a) the MCA making an offer on the terms set out in its documentation which the CRO accepts by responding positively or (b) the CRO making an offer to undertake the necessary work or services which the MCA accepts by accepting their offer and deploying them. The fact that the CRO is entitled to remuneration for providing the services of attending even if stood down might favour the former. In either event, there is an intention to create legal relations and an agreement pursuant to which the CRO undertakes to do the work or perform the services in consideration of which the MCA agrees to pay the CRO at the rates previously agreed. Either analysis leads to the conclusion that there is a contract satisfying the requirements of section 230(3)(b) so that the CRO is a “worker” within the meaning of the Act. I would reject the submission that analyses the agreement between the parties as an “if” agreement (“If you walk to York, I will pay you £100”), though I see no compelling reason why, in suitable circumstances, a unilateral “if” contract should not satisfy the terms of section 230(3)(b). For the reasons I have attempted to give, this is a bilateral agreement involving mutuality of obligations that place the resulting contract within section 230(3)(b).

The underlying nature of the agreement between the parties is not affected if either party is entitled subsequently to cancel it: see Somerville at [54]. It is therefore not necessary to decide whether, on a proper construction of the agreement, the CRO who changes their mind half way down the cliff is entitled to do so. However, if it were necessary I would reject the submission that the CRO can bale out whenever it takes their fancy to do so. To my mind such an outcome is inconsistent with (a) the safety-critical nature of the enterprise and (b) the CRO’s agreement to comply with reasonable requests. Nor is the underlying nature of the agreement between the parties affected by whether or not the CRO decides (as they are free to decide) that they will not enforce their entitlement to be paid. They may reject payment; but it does not follow that they reject the scheme under which they are entitled to be paid.

Throughout the hearing it became increasingly difficult to understand how the appellant sought to distinguish Uber. When pressed in reply, the only point of distinction that Mr Tolley was able to suggest was that, once an Uber driver accepts a passenger they are bound to complete the journey. For the reasons I have just given, I do not accept that Uber can be distinguished even on that limited basis.

I would therefore dismiss this appeal.