Labour & European Law Review Weekly Issue 223 23 June 2011
To bring a claim under the disability legislation, claimants have to prove that they are in employment. In Breakell v Shropshire Army Cadet Force, the Employment Appeal Tribunal (EAT) said that even paid volunteers do not qualify as workers if there is no mutuality of obligation between them and their “employer”.
Mr Breakell, who had previously been a member of the Adult Cadet Force (ACF), became a probationary Adult Instructor (AI) in July 2008. His job was to train cadets in accordance with a training programme, as well as to carry out some administrative and other duties.
As an AI, he was entitled to remuneration for a maximum of 28 paid training days (PTDs), although there was no obligation on the ACF to provide any minimum number of PTDs.
Indeed, in October 2009, the Ministry of Defence (MoD) stopped payment for all training days.
Equally, Mr Breakell was not obliged to turn up to any of the training days, although paragraph 7 of his terms and conditions stated that the agreement between him and the ACF could be terminated without notice if he was absent without permission for 56 consecutive days.
The volunteers were not covered by the National Minimum Wage Regulations and the payments they received were not related to the number of hours worked.
Mr Breakell made a claim for discrimination under the 1995 Disability Discrimination Act.
Section 68(1) of the DDA states that the definition of “employment” includes “employment under a contract of service or of apprenticeship or a contract personally to do any work ...". This is the same definition as in the Equality Act 2010.
The Tribunal, however, dismissed his claim.
It said that as the ACF was not under any obligation to provide Mr Breakell with any work (as evidenced by the MoD’s decision to stop all PTDs in 2009) and he was not obliged to do any, there was no mutuality of obligation.
He was therefore a volunteer, he was not covered by section 68(1) and the Tribunal did not have jurisdiction to hear his claim.
And the EAT agreed. It said that the Tribunal was right, on the facts as it found them, to decide that there was no obligation on the ACF to provide work nor on Mr Breakell to accept any.
It concluded that: “Put simply, the Claimant fails on the facts as found by the Employment Judge that there was no mutuality of obligation in this case”.
This was the case even though Mr Breakell was a paid volunteer who was required to carry out certain tasks when he was working.