Non-Executive Directors and ‘Worker’ Status – Guideline Ruling

Can a non-executive director who receives no more than an honorarium for services that he provides voluntarily enjoy the protected status of a ‘worker’? That was the thorny issue addressed by the Employment Appeal Tribunal (EAT) in a guideline case.

The case concerned a professional who…

Sep 23, 2022

The case concerned a professional who was appointed to a four-year non-executive directorship of a national sporting body. In Employment Tribunal (ET) proceedings, he alleged that he had been subjected to detriments for whistleblowing. His claim was, however, dismissed on the basis that he was not a worker, as defined by Section 230(3)(b) of the Employment Rights Act 1996 (ERA).

His role was described as voluntary and there was no written contract between him and the body. Save for a £1,500 annual honorarium, he was paid nothing for his services. He held a full-time position with an unconnected business and was not required to attend the body’s board or committee meetings. Although he was unable to provide a substitute to perform his role, he was free to resign his directorship at any time without any requirement to give notice.

In its decision, the ET observed that the purpose of the relevant provisions of the ERA is to protect vulnerable workers from unfair treatment. It noted that the man was free to undertake his activities with complete independence. He was not in any sense a vulnerable individual in a position of subordination.

In upholding his appeal, however, the EAT noted that those observations had little relevance to his position as a non-executive officeholder. The sole question for the ET to determine was whether there was a contractual relationship between him and the body whereby he undertook to perform work or services personally. However, it failed to make a clear finding on that issue.

The ET had also failed to engage with particular factors that the man relied on as pointing to his having undertaken his duties pursuant to a contract with the body. In those circumstances, it was neither safe nor fair to uphold the ET’s decision on worker status. The matter was remitted for rehearing by a differently constituted ET.

Employment Dispute Settlement Precludes Subsequent Victimisation Claim

The vast majority of employment cases end in compromise, thus doing away with the need for a public hearing. As a Court of Appeal ruling made plain, however, great professional care is required in drafting settlement agreements in order to ensure that they do not themselves become the focus of further dispute. The case concerned a man whose race discrimination complaint against a company for which he worked for about a month was compromised on confidential terms. He accepted a sum of money in…

Dismissal of ‘Anti-Zionist’ Council Employee Ruled Unfair

Employers may come under external pressure to take disciplinary action against an employee, but that is all the more reason to follow a scrupulously fair procedure. The point was made by the case of a council employee who became the focus of media attention after participating in a demonstration outside Parliament. The man worked in the council’s environmental health department. His role was not considered politically sensitive and he was free to attend demonstrations and to state his political…

Discrimination and the Burden of Proof – Supreme Court Clarifies the Law

Ever since a crucial alteration was made to the wording of the Equality Act 2010, the question of where the burden of proof lies in employment discrimination cases has been the focus of intense legal debate. An important Supreme Court ruling has, however, resolved the issue once and for all. The case concerned a postman who was born in Nigeria and identified as black African and Nigerian. He had qualifications in computing and wished to obtain a managerial or technical role within Royal Mail.…