Bray v Ministry of Defence

Army instructor is volunteer and not employee despite being paid for training cadets. 

The London South Employment Tribunal has handed down judgment in Bray v Ministry of Defence (Case No 2301659/2014), an important first instance decision on whether adult instructors working within the Army Cadet Force (part of the MOD) can claim the employment protections associated with being either an employee or worker. Click here to access a full copy of the judgment.

Mr Bray had claimed he had suffered age discrimination when he was given notice that his engagement with the ACF would terminate before his 68th birthday in order to bring about succession planning.

The Tribunal had to decide, as a preliminary issue, whether Mr Bray was “in employment” within the meaning of the Equality Act 2010. Mr Bray’s contract dated back to 1985 and was headed “terms of employment”. He was paid remuneration for some of the work he performed training cadets but on other occasions performed tasks without the expectation of pay.

The Respondent claimed that despite the labels within the 1985 contract, the relationship was not one of employment and that the Claimant was in truth a volunteer. The Respondent argued that the fact the Claimant was paid for certain tasks to compensate him for his time did not make the relationship one of employment because if there was any contract between the parties it was one akin to the type of unilateral “if” contract described by the EAT in South East Sheffield Citizens Advice Bureau v Grayson [2004] IRLR 353. That is to say, “if” the volunteer did work he would be paid when he attended but there was no obligation on the volunteer actually to do any minimum amount of work nor any obligation on the employer to provide work.

Employment Judge Elliott, after hearing detailed evidence from both parties and considering the terms of the ACF Manual, agreed that there was an absence of the crucial mutuality of obligations required to render the Claimant “in employment” within the meaning of the Act. The labels the parties put on the documents and the tax treatment of the relationship by HMRC was not determinative of the position. The Judge followed the EAT decision in Breakell v West Midlands Reserve Forces and Cadets Association EAT/0372/10, which the Judge agreed was directly on point and which also supported the proposition that Adult Instructions were volunteers and not employees or workers. The Judge therefore declined to hear the Claimant’s claims for want of jurisdiction. Although a first instance decision, with many other employees on similar agreements volunteering for the Army, the judgment could have wider implications.

Tom Kirk appeared for the Ministry of Defence and was instructed by Mark Manaton-Graham of the Treasury Solicitor’s Department.

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Bray v Ministry of Defence