In recent years, employment tribunals have staged some dramatic cases on employment status, often grappling with the question: “To be, or not to be (a worker)?” Often the focus has been on the distinction between workers and self-employed contractors. However, in the recent case of Ms S Campbell v Dr D Crilly and Ms J Burns T/a Cambridge Shakespeare Festival the attention shifted to a different dilemma: the distinction between a worker and a volunteer.
Background
The Claimant took part in the Cambridge Shakespeare Festival (the “Festival”) and brought several claims against Dr Crilly and Ms Burns. All of the claims depended on her being classed as a worker.
The Festival had taken place annually for several decades and had grown significantly in size over the years. The Festival’s entire budget was underwritten or provided by the Respondents, who hoped to recover costs through ticket sales, however, this was not always achieved. The Respondents explained that nearly half of the Festival’s budget was generally spent on accommodation for actors and whilst they had not established themselves as a charity or non-profit, the Festival’s predominant purpose was educational and charitable.
The Claimant was invited to audition for the Festival via email, receiving the Festival’s standard invitation. The email stated that they “are unable to offer any financial incentive to company members” and, while accommodation would be provided and paid for, they could only offer a “token gesture” of £50 per week towards expenses. This financial arrangement applied to all participants in the Festival, regardless of their role.
The Claimant accepted the invitation and attended an audition. The Respondents reiterated the financial position at the audition, as they were aware of previous tribunal rulings about volunteer actors. The Claimant was offered roles in Hamlet and Richard III, and the offer email again confirmed the “financial deal… [was] £50/week… [as] something towards your expenses”.
The Claimant was expected to follow the rehearsal schedule, assist with dismantling equipment after performances, help with tidying up, and promote the Festival through leafleting. However, she often failed to attend scheduled times because she was undertaking temporary work alongside performing at the Festival.
The Claimant argued that the level of control exercised by the Respondents and the commitment required meant she was a worker, not a volunteer, and therefore entitled to wages amongst other things. The Respondents maintained that she was a volunteer.
Tribunal’s Decision
The Tribunal held that the Claimant was not a worker and the Judge made the following points:
- No statutory definition of ‘volunteer’ exists in employment law. The Judge considered the definition of ‘worker’ and concluded that ‘work’ and ‘services’ required the expectation of remuneration.
- No expectation of remuneration existed. Genuine expenses cannot be considered income or remuneration. If remuneration had been expected, the activity would have constituted ‘work’, making the Claimant a worker. The Claimant acknowledged that the £50 weekly payment was a “gesture of goodwill”, and the Respondents described it as “beer money”.
- While there was an expectation of participation in activities, little consequence followed if an actor chose not to participate and the Respondents made alternative arrangements to ensure performances continued. The Claimant’s efforts and commitment were recognised by the Judge but it was highlighted that these can exist in both worker relationships and volunteer roles.
Lessons for Employers
To reduce the risk of volunteers being deemed workers:
- Avoid reimbursing expenses or limit them strictly to what is necessary for volunteers to carry out their duties.
- Clearly set out the nature of the relationship in a volunteer agreement.
- Keep volunteer roles flexible.
How we can help
For further information, or to discuss the issues raised within this case, please contact us to speak to a member of our Employment Team.
This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.
