R v Central Arbitration Committee ex parte British Broadcasting Corporation unreported, High Court [6 April 2003]

The definition of worker status for trade union recognition law differs from the definition for paid annual leave and other individual rights.

The definition of worker for a statutory application for recognition is in s296 of the Trade Union and Labour Relations (Consolidation) Act 1992. It also applies for the law on industrial action, collective bargaining and trade union internal matters.

The definition includes employees and also covers those who "work, normally work or seeks to work under [a] contract whereby he undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his".

In short, the definition covers those who contract to provide personal services, but not if they do so as a professional to a client. Unlike the individual rights definition in the Employment Rights Act and Working Time Regulations, it does not go on to exclude those who provide their services as a business to a customer or client.

BECTU applied for recognition for wildlife cameramen and women who work for the BBC Natural History Unit. They work on standard contracts prepared by the BBC. The BBC is by far the largest provider of work of this type and many of the cameramen and women worked regularly for the BBC. The BBC retained a Contact List of those who worked or may be offered work.

The BBC disputed that the cameramen and women were workers. If the camera operators are not "workers" within the meaning of S296, then they have no rights to trade union recognition under the legislation and would have to rely on seeking voluntary recognition. The Central Arbitration Committee decided that they were workers. The BBC challenged this by an application for judicial review of the CAC's decision, at which BECTU was also represented.

The CAC had decided that the camera operators met the requirement of providing personal service, despite a substitution clause in the contract. This was not challenged in the judicial review application.

The judgment includes some helpful guidance on the proper approach to the definition. The judge acknowledged the difference between this definition and the one that applies to individual rights (considered in the case of Byrne Brothers v Baird). The judge said it was not necessary in the collective worker test for the individual to show that she or he was economically dependent on the employer: a worker may work for one employer or a number of employers. Someone who works for a number of different employers is not necessarily a professional and, conversely, a professional may be dependent on one particular client.

It is also helpful that the judge emphasised that the length of the contract to work did not determine the issue. A person may work for an employer on a one day contract, but this did not make him a professional: he may still be a worker.

The judge also confirmed that the CAC could look at the issue on a collective basis, assessing the nature of the relationship of the group of camera operators with the employer, rather than (as the BBC argued) needing to assess the position for each individual and satisfy itself that every individual in the proposed bargaining unit was a worker under the legal definition.

The judgment stresses the informal nature of the recognition procedures and that the process is intended to be speedy. It also describes the statutory recognition process as intended to be non-legalistic and conducive to good industrial relations rather than litigation and designed to encourage a speedy momentum rather than delays.

The issue then was to decide what constituted a professional working for a client. The judge agreed that there were a number of factors that could be taken into account, including the level of skill and professionalism required, training, membership of a professional body and the nature of the arrangements between the parties.

However, the CAC had said that "some form of regulation of a professional's field of activity by a body covering those engaged or seeking to be engaged in that activity is required in order for that person to be categorised as a 'professional'," and that "this test is not met by the cameramen/women engaged by the" BBC.

The judge said that the CAC was wrong to impose this as a test. It was a legitimate factor to take into account and it may be a significant factor, but it is not an absolute requirement.

The CAC's decision was overturned on that ground and the issue has been sent back to the CAC to decide, taking into account the court's guidance.

The decision is largely helpful on the approach to the definition of "worker". Its other significance is as the first time that a CAC decision under the new statutory recognition procedure has been overturned on judicial review. As this arose from an error of law from the CAC on a substantive point of law, it should not be the precursor to greater encroachment by the courts on the CAC's approach to statutory recognition cases.