When deciding whether a non-executive director is a worker or not, tribunals have to consider, among other things, whether they work under a contract. In Catt v English Table Tennis Association Ltd and ors, the Employment Appeal Tribunal (EAT) held that, in answering that question, tribunals have to judge each situation against the statutory language and the particular facts of the case.
Basic facts
Mr Catt was elected to the board of the English Table Tennis Association Ltd (ETTA) as a non-executive director with effect from 29 June 2019 for a four-year term. Although he was a volunteer, he was entitled to an honorarium of £1,500 per year plus expenses and expected to give a time commitment of 15 to 20 days per year, including attendance at board and sub-committee meetings, as well as other meetings and competition/events.
After making a number of protected disclosures (blowing the whistle), he claimed that he had been subjected to detriments by ETTA. The association resisted the claim on the basis that he was not a “worker” for the purposes of section 230(3)(b) of the Employment Rights Act (ERA) and therefore the tribunal did not have jurisdiction to hear the claim.
Relevant law
Section 230(3) ERA states that a worker is an individual who works under either:
“(a) a contract of employment, or
(b) any other contract, whether express or implied … 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”.
Tribunal decision
As Mr Catt undertook his duties as a non-executive director personally and there was no suggestion that ETTA was his client or customer, the issue for the tribunal to decide was whether there was a contract between the parties under which he was required to perform work or services.
Instead of addressing that specific question, however, the tribunal held that Mr Catt could not be a worker because his position “was not one that could be described in any sense of a person who was a vulnerable individual in a position of subordination and dependence”. Nor was it the purpose of either of the parties to the contract for Mr Catt to be given the status of worker.
Mr Catt appealed on the basis that the tribunal had failed to address the question of whether there was a contract between himself and ETTA.
EAT decision
The EAT agreed that the tribunal had failed to make a clear finding on this point. Indeed, rather than addressing that question, the tribunal had instead focused “on questions of vulnerability, subordination and dependency”.
Acknowledging that those questions might “be very relevant issues in many cases – in particular where the standard form documentation provided by the more powerful party does not reflect the reality of the relationship”, the EAT held that “they were unlikely to provide material assistance in the circumstances of the present case”.
Noting that “the particular obligations undertaken by a non-executive director in one context may be very different to those of a non-executive director in another context”, the EAT emphasised that there is no “one-size fits all” route to the answer in such cases. Instead, each situation has to be judged against the statutory language and a decision reached on the particular facts of the case in question.
As the tribunal had failed to carry out that exercise, the EAT remitted the matter to a differently constituted tribunal so that the case could be heard again.
Comment
This is another in the cavalcade of cases involving so-called “limb (b)” workers. The facts are less important than the process. Our law gives protection only to limb (a) and limb (b) workers, but applies to an industrial environment with numerous subtle and complex working relationships. Sometimes it is easy to see where someone fits, but at other times it is like watching a determined toddler trying to force their blocks through a variety of differently shaped holes. The EAT here emphasises the importance of a methodical approach and of asking the right questions because sometimes, even though it’s not necessarily obvious from the start, that star-shaped piece will actually fit through the square hole - you just need to approach it in the right way.