P Onyia v Royal Town Planning Institute and Royal Institute of British Architects: 3305427/2022
EMPLOYMENT TRIBUNALS
Case No 3305427/2022
Between
P OnyiaClaimantRoyal Town Planning Institute and Royal Institute of British ArchitectsRespondent
Before
Employment Judge StreetDate 28 June 2023
JUDGMENT
The complaints of discrimination on the grounds of age, sexual orientation, religion or belief, race, disability, marriage or civil partnership or sex, for notice pay, holiday pay, arrears of pay and other payments against the First Respondent, the Royal Town Planning Institute, have no reasonable prospect of success and are struck out. The Claimant is Ordered to pay the sum of £200 towards the Respondent’s costs, the claims made having no prospect of success. JUDGMENT having been given orally and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013 at the hearing, the following Reasons are provided.
REASONS
[1]Background 1.1. The Claimant brought claims by a claim form (“ET1”) presented on 11 May 2022, against both Respondents. 1.2. The First Respondent filed a response. Service on the Second Respondent was ineffective. The Second Respondent did not respond. 1.3. On 5 August 2022, the First Respondent applied for all the claims against it to be struck out, or for a deposit order. That was on the grounds that the Claimant's relationship with the First Respondent was limited to being a member and unpaid volunteer. The First Respondent said she was not an employee or a worker of the First Respondent for the purposes of the Employment Rights Act 1996 or in its employment for the purposes of the Equality Act 2010. 1.4. By an Order dated 3 January 2023, Employment Judge Laidler gave notice that in his view, the Tribunal had no jurisdiction to consider the claims and/or the claims had no reasonable prospect of success. 1.5. That was on the following grounds: 1.5.1. The Claimant has ticked the boxes at section 8.1 claiming age, religion/ belief, race, disability, marriage/ civil partnership and sex but provided no particulars as to how she was treated less favourably on those grounds. 1.5.2. The Claimant states that she was a volunteer for the Royal Town Planning Institute but claims notice pay, holiday pay, arrears of pay and other payments but sets out no details as to the basis on which she would be entitled to such as a volunteer. 1.5.3. The Claimant has named the Royal Institute of British Architects but does not provide any information as to why that entity should be a party or what claims are brought against it. 1.6. Employment Judge Laidler ordered that all claims would stand dismissed on 24 January 2023 without further order, unless before that date the Claimant had explained in writing why the claims should not be dismissed. 1.7. The Claimant responded by e-mail on 6 January 2023. 1.8. The present hearing was listed to consider strike out, deposit orders and/ case management if the case was to proceed. Case Management Orders were made to address the steps required in preparation for this hearing. Those included, “The Claimant and the Respondent must send each other copies of all the documents they have relevant only to the preliminary issues. Documents includes recordings, emails, text messages, social media and other electronic information. You must send all relevant documents you have in your possession or control even if they do not support your case.”[2]Evidence 2.1. The Claimant gave evidence on her own behalf under affirmation 2.2. The Respondent called no witnesses. 2.3. The Respondent presented a bundle of documents of 226 pages, to which the Claimant had contributed, together with a supplementary bundle of more recent correspondence. Numbers in brackets in these Reasons are references to the page numbers in the bundle, the digital page number following. 2.4. The Royal Town Planning Institute is referred to here as the “RTPI” and the Royal Institute of British Architects as the “RIBA”.[3]Issues 3.1. The hearing was listed for the Employment Judge to consider the following preliminary issues: 3.1.1. To consider whether any of the claims having no reasonable prospect of success should be struck out 3.1.2. to consider whether any of the claims having little reasonable prospect of success the Claimant should be ordered to pay a deposit in relation to any such claims, and 3.1.3. if any claims proceed, to clarify those, finalise a list of issues, make further directions up to and including listing the full merits hearing.[4]Findings of Fact 4.1. Ms Onyia is an architect. She describes having wide-ranging expertise by virtue of experience and qualifications in urban design, planning and architecture. She is a member of the Urban Design Network. Her history has been as an employee in employment but more recently she says she has become self-employed. She says she has no expertise in employment law. 4.2. The RTPI publishes material on its website describing opportunities for volunteers and the terms on which they work. It does not limit the hours that volunteers can do. It does not promise payment in respect of hours undertaken by volunteers, even if those hours become substantial. 4.3. For example, it explains “There are a great variety of roles available at the RTPI, some of which need more of a time commitment than others. For example, in our bylaws, it states that 50% of our standing committees must be made up of members of our General Assembly. So, if you apply to join the General Assembly you will might (stet) also take on another role on one of our committees. This is likely to mean at least 10 days of volunteering a year. You could get involved in a nations executive committee or regional management board or activities committee. This is about four or five days of volunteering a year. These enable you to get involved in your nation or region and as a AC member you can focus on your areas of interest. It might be planning CPD events or being on an awards judging panel.” (104/109) 4.4. Ms Onyia started working with the RTPI in 2020. She saw an e-mail asking for people who would join a committee. She had previously applied for a role with the RTPI but had been refused. She then saw this opportunity and thought it would be a good idea for her to follow it up. 4.5. She agrees that at this stage her involvement was on a voluntary basis. She enjoyed it. As she says, “It made me feel I had something to do, rather than doing nothing at all.” She was not paid. She was free to refuse any invitation to work on something or to contribute. 4.6. She undertook some work reviewing government policies and received an email thanking her for that work from the lead for the policy team. That made her feel appreciated. She had contributed something meaningful. 4.7. Other opportunities for voluntary work arose. She undertook more work, she contributed to a variety of things and committed time, including in the evening, and at weekends. She wrote articles. She contributed to work on continuing professional development. 4.8. Ms Onyia agreed that when opportunities arose, she might undertake the work or, if she was busy or had less to offer because it was outside her field of expertise, she might not. She very much enjoyed the work. She says there were interesting things going on and she found the people engaging. She started taking a more active interest, checking emails, considering whether she should respond and so became more actively involved. 4.9. All that work was on the basis that she was a volunteer. 4.10. The RTPI does not offer a volunteer agreement. There was no formality to her volunteer role. 4.11. On the 11th of November 2021, Ms Onyia wrote to Susan, a full-time employee of the RTPI and the regional coordinator for the South East region. saying that she was applying for a position with a local authority and asking whether it would be possible to have a reference from the RTPI with regards to the volunteer role she had been doing (168/173). 4.12. Eventually, she was asked to undertake the role as international lead in respect of work on which she had been a committee member. She established that the existing lead was leaving and that that was not for any reason that might put her off - such that he was under too much pressure or there were difficulties with the role. 4.13. If she undertook the role she wanted to make a meaningful impression. She arranged a proper handover with the previous lead and with Susan. 4.14. She agreed to do undertake the role. 4.15. The previous lead was Geoffrey Ing. He is shown in a picture from RTPI material about volunteering, captioned, “RTPI SE committee members are all volunteers with expertise in many aspects of planning and represent both the private and public sectors” (128/133) 4.16. Ms Onyia then wrote to Simon who is the local chair: “I met with Jeff and Susan yesterday and there was an official handover. As the chair, i am making you aware of what was discussed. As the new lead for the international task group can you clarify for me whether this is a paid role by the RTPI and if so, how much am I expected to receive? Please note, I do have billable hours on any given day. This will allow me to know the level of involvement and amount of time I can spend on the task group.” 4.17. She went on to discuss other plans, speakers, an article, future meetings. 4.18. Ms Onyia says that she received a response to that e-mail from Simon that was a holding response. In other words it did not answer her question about paid employment or rate of pay but promised a fuller reply. 4.19. That e-mail has not been disclosed and the RTPI deny any knowledge of it. However it did not, on her evidence, present or promise an agreement of any kind. There was no offer of payment to her. 4.20. There was no discussion about the terms on which she would work with any representative, employed or not, of the RTPI 4.21. As she explains, “Susan would ask me, could you do a certain thing, and to me, I thought, why not, but the issue at the back of my mind was how am I going to be paid for the work I am doing.” “I was being asked if I would do this, or join for a meeting, or different things for the SE Region, and I enjoyed all of it. But my time was pulled in different directions, no one was unkind or horrible. But I kept saying how will I be paid?” 4.22. It is not clear who she was saying that to other than Simon in the e-mail referred to, but what she says is, “All I kept on hearing was that I was a volunteer and eventually I was referred to someone who deals with the volunteers.” 4.23. Nothing led to negotiation over the payment to her for the work she was doing, no offer was made to her and no agreement or contract entered into. 4.24. She did not discuss the terms on which she was working with Susan. 4.25. She is not clear about whether she was entitled to refuse the work: “I don’t know that I was entitled to, but I never did, because I enjoyed the work. If she said we need a meeting, or she would say we needed to send an article or review some particular work, I would just do it. I enjoyed it. I felt I was adding a meaningful impact and I would even offer to do certain things, I said, I enjoyed what I was doing.” 4.26. She felt valued. 4.27. She was and is unhappy about the terms of her membership status. She did not feel that the categories of student or licentiate to be appropriate. To be a licentiate did not recognise her level of expertise and broad range of experience and qualification. She was not willing to undergo the procedures required to apply for chartered membership because it meant disclosing areas of work or working activities which were confidential. The level of her membership she says has a bearing on the level of remuneration she should be able to command in respect of the work for the RTPI. 4.28. She agrees she has never been paid for the work she does for the RTPI. She agrees that she does not have any written contract with the RTPI. She agrees that there has been no discussion with any individual at the RTPI in which terms and conditions were fixed for any work that she did based on an agreed rate of pay to her for her services in respect of work provided to her by the RTPI. 4.29. She had no contract, oral or written.[5]Law Volunteers 5.1. Under the ERA 1996 section 230(1), an “employee” is defined as an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment" 5.2. A “contract of employment” is defined as the contract of service or apprenticeship, whether express or implied and, if express, whether oral or in writing. 5.3. “Worker” means “an individual who has entered into or works under...(a) a contract of employment, or(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, 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.” 5.4. To be a worker or an employee therefore requires a contract. 5.5. The workplace protections of the Equality Act 2010 protect a category of individuals that is wider. 5.6. By the Equality Act 2010, section 83(2)(a) “employment” means “employment under a contract of employment, a contract of apprenticeship, or any other contract personally to do work”. 5.7. The essential difference is between those who are employed or in employment (under those definitions) and those who are genuinely self-employed, carrying on business for themselves for clients or customers. 5.8. The position of a volunteer who had no contract was considered by the UK Supreme Court in UKSC X v Mid Sussex CAB [2013] IRLR 146 in relation to Equality Act claims. The Claimant there volunteered for the Citizen’s Advice Bureau. 5.9. The Equality Act 2010 is the source of the obligations on employers in respect of discrimination in all categories 5.10. What is said in the introduction to the judgment is this, “Any responsible organisation aims to combat discrimination on the grounds of disability - or indeed any other characteristic protected by the Equality Act 2010 - and will do so for the benefit of persons serving or wishing to serve as volunteers in the organisation no less than anyone else. But the present appeal is not about this moral imperative. It is about whether, under European and domestic law, discrimination against volunteers, or some categories of volunteer, on the grounds of disability is currently unlawful and if so how the relevant volunteers are to be defined.” 5.11. The importance of that judgement is not limited to the protected status of disability but applies to any protected status. It is not limited to volunteers for the Citizens Advice Bureau but to volunteers generally. 5.12. The Supreme Court reviewed European law which is the source of much of UK discrimination law. The judges referred to the Framework Directive1 5.13. In reviewing European Court of Justice judgments considering the meaning of the words “worker” and “employment”, the classic definition of being a “worker”, or being in a “employment relationship” found is, 1.1. 1 The Directive containing basic obligations for employers and workers (Directive 89/ 391 EEC) “For a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration” 5.14. The Supreme Court held that : the Framework Directive definitely does not cover voluntary work therefore it is not necessary to interpret UK domestic legislation in such a way as to cover volunteers, if the UK legislation does not on a straightforward reading cover them if there is no contract the person is not covered 5.15. In respect of the jurisdiction of the Employment Tribunal, the relevant provisions of the Employment Rights Act 1996 and of the Equality Act 2010 do not apply to volunteers. 5.16. I am referred to South East Sheffield Citizens Advice Bureau v Grayson UKEAT/0283/03/DA. That was also a Citizens Advice Bureau (“CAB”) case concerning volunteer work. 5.17. In that case, there was a volunteer agreement covering the work of volunteers. It was had to be determined whether that volunteer agreement meant that the volunteer worker was in fact an employee under a contract of service or under a contract personally to do work. If that was to be the case, it must be on the basis that there was an arrangement under which, in exchange for valuable consideration, the volunteer is contractually obliged to render services to or else to work personally for another, here the CAB. (Valuable consideration put very simply means that each party to the agreement promises to provide something to the other – usually in this context, pay in exchange for work.) Considerations included whether there was an intention to create a legal relationship, rather than simply reasonable expectations. “Expectations” are not the language of contractual obligation. Guidance about or an expectation as to the level of work in terms of hours is not the same as a binding obligation. But, the agreement there did not include that the volunteer was paid. There was no obligation to provide work for the volunteer and there was no obligation on the volunteer to do it. If the volunteer simply ended the arrangement, the Bureau would not have a case for claiming a breach of contract. The volunteers were held not to be in employment. Costs 5.18. By rule 76(1), “A Tribunal may make a costs order …..and shall consider whether to do so, where it considers that- (b) Any claim or response had no reasonable prospect of success” 5.19. That imposes a duty on the tribunal to consider a costs order in such a case. 5.20. In , per Mummery LJ, this guidance is given, “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and ,in doing so, to identify the conduct, what was unreasonable about it and what effects it had.” 5.21. At this preliminary stage it would be right to take the Claimant’s case at its highest since the full evidence has not been heard. 5.22. In Cartiers Superfoods Ltd [1978] IRLR 315, this is said, “…. We think it is right to look and see what the party in question knew or ought to have known if he had gone about the matter sensibly.”[6]Submissions 6.1. Mr Clark and Ms Onyia both made submissions which I have considered carefully and with equal care in making my findings of fact and in determining the issues.[8]Determination 8.1. The claims against the RTPI are struck out.[9]Costs 9.1. An application for costs was made. The Respondent’s costs were put at £13,000 but the application was limited to the costs of the hearing, put at £1300. The Respondent had warned the Claimant that the claims she made were outside the jurisdiction of the Tribunal. 9.2. That there might be a question about whether the Tribunal had jurisdiction and whether the claims had any reasonable prospect of success had been flagged up to the Claimant by the Respondent on 5 August 2022. The finding made was on exactly the basis then put forward. 9.3. The Claimant was alerted to the issue in respect of the Employment Rights Act claims in the Order of Employment Judge Laidler of 3 January 2023. 9.4. The basis on which she persisted in her claim, that at some point she was entitled to be paid because of the level of work she did, is not a sensible one. The difference between volunteering to do something and agreeing to do something for payment is a matter of general knowledge, common sense and experience. 9.5. Ms Onyia is very well equipped to take advice and to carry out her own research. At least from the date of the warning on 5 August 2022, she should have explored why it was being said that the claims were outside the jurisdiction of the Tribunal. ACAS had told her that they could not assist: that might have prompted enquiry. 9.6. It is fair to say that she disagreed that her conduct in bringing these claims was unreasonable. She saw it as her only option. That is not the case: the essence of being a volunteer is that you do not have to do the work. If she thought she should be paid, she should have established that the RTPI agreed to pay her, and if they would not, her remedy was not to do it. 9.7. It is hard to understand how she could bring money claims with no agreed basis for money to be owing to her. 9.8. I asked about her means. She said she had no income, had not had since 2016, had received no benefits, lived on modest capital and family support. That is not a clear answer. 9.9. Taking all that into account, I ordered her to pay £200 towards the Respondent’s costs, noting in particular the money claims which she could not quantify and for which she put forward no basis on which the liability could arise. Case Number: 3305427/2022 (c) for non-compliance with any of these Rules or with an order of the Tribunal; d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.[41]In my judgment, the claim against the RIBA has no reasonable prospect of success. It appears to be about matters that are outside the jurisdiction of the Employment Tribunal, primarily the failure to respond to her membership application or to her offer of an article for publication. A claim is not brought by ticking a box and no grounds had been given for the boxes in the claim form (the ET1) that were ticked. If the claims indicated in the ET1 were intended to be brought against the RIBA, they all require a status as an employee or a worker for the Employment Rights Act 1996 or as someone in employment as defined in the Equality Act 2010.[42]Ms Onyia has not at any time said that she had a contract with the RIBA or worked directly for them. Asked whether she had worked for the RIBA, her answer was, “I do not for my knowledge know if I am doing work for RIBA.”[43]That does not indicate that she has the status to bring claims to this Tribunal.[44]The Claimant has provided no grounds for her claim that fall within the jurisdiction of the tribunal and has not put forward any arguable case that she has the required status to bring the claims she indicated.[45]On the basis of her account I find that the claims against the RIBA have no reasonable prospect of success because they are out of the jurisdiction of the Tribunal. 46. `I direct that the claim is served on the Royal Institute of British Architects together with this strike out notice and the Judgment and Reasons in respect of the Royal Town Planning Institute.