Mr J Taylor-Brace v University Teaching Hospital NHS Foundation Trust: 6013955/2024

EMPLOYMENT TRIBUNALS

Case No 6013955/2024

Between

Mr J Taylor-BraceClaimant

University Teaching Hospital NHS Foundation TrustRespondent

Before

Employment Judge Shotter

In person for claimant

Mr A Gibson (instructed by Solicitor) for respondent

Date 6 August 2025

JUDGMENT

[1]The claimant was a volunteer, and not an employee or worker of the respondent at the relevant time. The claim of disability discrimination brought under section 20-21 of the Equality Act 2010 is therefore dismissed because the Tribunal does not have jurisdiction to determine it.

[2]The claimant’s application for a stay and/or reconsideration is refused in the interests of justice.

REASONS

[1]This is a public preliminary hearing which follows a private preliminary hearing held on the 26 March 2025 attended by the claimant and Mr Gibson. The Case Management Summary was sent to the parties on the 24 April 2025.

[2]The claimant has “hearing problems” and his claim for disability discrimination brought under section 20-21 of the Equality Act 2010 relates to one allegation described in the Case Management Summary as “a refusal at a meeting on 25 July 2024 to allow him to use the equipment provided to him, as an adjustment, to produce live captions of the meeting.” Attached to the claimant’s form is a transcript of the 25 July 2025 meeting and in the attached Grounds of Complaint the claimant, at paras. 8 & 9 describes how he was provided with software and electronic equipment by the respondent, he used it and was told by the governors to stop on the basis that the meeting was off the record, private and confidential. The claimant was told to delete the transcript that had been made of the meeting. He did not delete it, and it is that transcript which is attached to the ET3. The claimant’s case is that for part of the meeting, after the transcript ends, the respondent failed in its duty to make reasonable adjustments by failing to provide him with a live caption system as an adjustment and preventing the claimant from using the system.

[3]The primary issue before me is whether the claimant’s claim is one that the Employment Tribunal has jurisdiction to consider. The respondent does not accept that the claimant was either an employee, a worker, or an office holder.

[4]The second issue is whether the claim should be struck out because it has no reasonable prospect of success, and in the alternative, should the claimant be ordered to pay a deposit of between £1 and £1000 as a condition of continuing with it?

[5]Both parties have provided written legal arguments supplemented by oral submissions today. The claimant introduced a new document after oral closing submissions had finished, which was admitted in evidence with no objection by Mr Gibson. The document consists of a number of emails, the important one is dated 20 December 2024 sent to the claimant by Alison Hughes, on behalf a Steve Ingoe, senior independent director. The claimant relies on this email in support of the respondent “stating he was not a volunteer.” I have dealt with the interpretation of the email below.

[6]This hearing was a hybrid hearing to provide the claimant access to two palantypists convert the hearing directly on the claimant’s screen, which worked well. The claimant was offered breaks as and when required, and it was agreed he would inform me if the palantypist required breaks. Breaks were given to the claimant in order to make sure that he could put forward his arguments in full, as confirmed by the claimant at the end of the hearing. The claimant wore sunglasses to reduce the risk of migraine and breaks were offered also in respect of any migraine if required.

[7]In a Tribunal letter to the parties dated 11 July 2025 I asked for comments from the parties as follows; Employment Judge Shotter has considered further the submissions in this case, particularly the claimant’s submissions relating to EU law, and as part of her deliberations refers the parties to the decision of the Supreme Court in X v Mid Sussex Citizens Advice Bureau and anor (Equality and Human Rights Commission and ors intervening)

[2013] ICR 249

, SC. I have dealt with the parties comments below. The claimant’s complaint 19 July 2025

[8]In a communication dated 19 July 2025 (brought to my attention on the 5 August 2025) the claimant raised a complaint about a number of matters that is not relevant to the Tribunal, except for the criticism concerning the palantypists and the Tribunal clerk who allegedly “changed the way in which reasonable adjustments were made for the hearing.” The claimant requests a re-hearing, which I refuse on the basis that it was not in the interests of justice. I have reviewed my handwritten notes taken at the preliminary hearing (which was recorded) and note that adjustments were discussed and agreed. We discussed the palantypists and my notes record “C gets typing on the laptop. All working. Judges don’t get the link. When does palantypist need breaks?...Change over every 20 mins – don’t need a break.” In my typed up notes of the hearing I recorded “reasonable adjustments for C – breaks – concentrate for lip reading. C wears sunglasses. Reduces the risk for migraines. Breaks also for migraines.” My typed notes reflect the claimant actively took part in the hearing and responded to what Mr Gibson was saying. At no stage did the claimant raise any issue with the palantypists, the way the hearing was being conducted or what had been said by the clerk beforehand. Further, there was no reference to any of the issues set out in the 19 July 2025 communication when the claimant requested a stay in the 12 July 2025 communication and responded to the Tribunal letter dated 11 July 2025.

[9]On the 21 July 2025, the claimant applied to stay the proceedings and attached additional documents that were not before me in the preliminary hearing including an email dated 9 August 2024 to Janelle Holmes complaining about David McGovern, which appears to have no relevance to the issues I am to decide. In addition, the claimant has attached a document dated 4 September 2024 titled “Incident Details” complaining about “a public governor has been instructed…they must not attend any of the premises of Wirral University Teaching Hospital…” which also has no relevance. The Notice of Criminal Charge issued against the claimant on 18 March 2025, and a whistleblowing disclosure dated 28 August 2024 are not relevant. The “Nomination Confirmation” dated 20 June 2026 is a document setting out receipt of the claimant’s “nomination to stand” in the respondent’s election to the Council of Governors 20 June 2025. It is notable the claimant is seeking re-election “having previously been elected as a governor.”

[10]The claimant has not provided any reasons for a stay, and his application is rejected on the basis that the preliminary hearing is concluded and it is not in the interests of justice to prolong this case, with the ongoing prejudice to the respondent, a public body, including costs.

[11]The claimant has not provided a good reason for a reconsideration and/or rehearing and it is not in the interests of justice to list the preliminary hearing for a reconsideration hearing.

[12]The parties agreed there was no need for witness statements, and the factual background in this case is undisputed. I have recorded this below . Background leading to this claim

[13]The claimant was employed part-time for an employer other than the respondent, who gave him time off for public office duties. In 2023 the claimant volunteered to become a public governor for Bidston and Claughton (the area where the claimant resides) on the respondent’s Council of Governors. The claimant was elected for a three year term from 18 October 2023.

[14]Under the NHS Act 2006 the respondent must have a council of governors who are to be elected or appointed (schedule 7). Governor’s Code of Conduct (“the Code”). The “Seven principles of Public Life” referred to in the Code

[15]Public Governors are required to adhere to a Governor’s Code of Conduct aimed at providing “clear guidance on the standards of conduct and behaviour expected of all…Governor’s, whether elected or appointed. The Code applies at all times when Governors are carrying out the business of the Foundation Trust or representing the Foundation Trust.” The Code set out “Seven principles of public life; “selflessness…integrity…objectivity…accountability…openness – honesty and leadership.” Governors are required to avoid conflicts of interest and register all relevant interests…” The paragraphs below are examples of the Code:15.1 In para.7 “governors have a responsibility to attend formal meetings of the Council of Governors…A Governor’s term of office may be terminated by the Council of governors if he/she has failed to attend three consecutive meetings…”

15.2 Para.9 provided Governors are expected to participate in training, development, and any review process.

[16]The claimant signed his personal declaration to abide by the Code of Conduct on the 13 September 2023. The claimant was not entitled to any renumeration as a publicly elected governor.

[17]The claimant resigned on the 16 March 2025 following a proposal to remove him from office. The claimant applied for a judicial review on the basis that the respondent’s decision to present the proposal for his removal was ultra vires. The application for permission to apply for a judicial review was refused on the 12 December 2024 by Mr Richard Wright KC sitting as Deputy High Court Judge. Reasons were set out. At para.2 reference is made to the claimant’s argument that he was a worker; “even if the claimant could come within the definition of worker, the remedy for any detriment he could establish he suffered as a result of his protected disclosure does not lie with judicial review proceedings but before the Employment Tribunal.”

[18]Part of the claimant’s reasoning for bringing this claim, which he describes as a “test case” is that right not to suffer unlawful discrimination/detriment should be enforceable in the Employment Tribunal.

[19]It is undisputed that the claimant was provided with IT and equipment to as adjustments when he was attending the respondent’s meetings. In addition, the claimant was provided with a lanyard, a parking area, and expenses including a set amount to cover meals when he was attending meetings. The claimant submits that this is evidence he was an employee.

[20]Following an exchange of correspondence between the respondent and claimant in late 2024, Alison Hughes, director of corporate affairs and SIRO emailed the claimant on behalf of Steve Igoe, senior independent director on 20 December 2024 as follows in paragraph 3 “you request a referral for confidential counselling quoting (and attaching) the Trust’s Volunteering Services Policy/Procedure. This Policy does not apply to governors and the Employee’s Assistance Programme (EAP) in place at the Trust for staff does not cover governors who hold publicly elected (not recruited) posts…” [my emphasis].

[21]It is notable the claimant had requested a referral for counselling under the respondent’s Volunteering Services Policy and I concluded he had done so on the basis that he believed himself to have been a volunteer at the time, following his voluntary application to be elected as a public governor. The claimant’s oral submission that Steve Igoe, in the 20 December 2024 email, was effectively “stating he was not a volunteer” has no basis. Giving the words of the email set out in para. 3 their commonsense ordinary meaning and considering the context of the entire paragraph, the claimant was informed the Volunteering Services Policy Procedure did not apply to governors who held publicly elected posts. It is notable the claimant, had he read the paragraph in context, should have understood that the respondent did not consider him to come under the definition of employee on the basis that he was a publicly elected governor. The claimant has not produced any evidence to show he disputed this at the time., and I find the claimant cannot have reasonably believed he was an employee with access to benefits, such as counselling, available to employees and governors who were recruited as opposed to publicly elected volunteers. Claims brought under section 20-21 of the Equality act 2010 (“EqA”).

[22]Section 39(5) of the EqA provides under the heading “Employees and applicants” that “A duty to make reasonable adjustments applies to an employer.”

[23]The duty to make reasonable adjustments is found in S.20 EqA. With specific regard to the operation of the duty in the context of employment, S.20(13) provides that S.20 is supplemented by Schedules 8 and 21 to the EqA. Schedule 8 sets out specific provisions regarding the duty in the context of employment and occupation, while Schedule 21 contains a number of supplementary provisions. S.39(5) states that the duty ‘applies to an employer’. It is notable that part of the statutory test is the employer must have knowledge of disability and disadvantage.

[24]Under S.109 EqA an employer is liable for acts of discrimination, harassment and victimisation carried out by its employees ‘in the course of employment’, regardless of whether the act was done with the employer’s knowledge or approval.

[25]S.83(2) defines employment as: employment under a contract of employment, a contract of apprenticeship or a contract personally to do work; Crown employment; and employment as a relevant member of House of Commons or House of Lords staff. S.83(4) goes on to provide that a reference to an ‘employee’ or an ‘employer’ is to be read with S.83(2). Thus, for a person to be an employee for the purposes of the EqA, he or she must fit into one of the six categories provided for in S.83(2). Volunteers including unpaid volunteers are not mentioned, and the is no reference to volunteer public governors, whether they be in the NHS, in schools, universities or other public bodies. Reconsideration

[26]The power to reconsider judgments is set out in Rules 68 to 71 of the Employment Tribunals Rules of Procedure 2024. Rule 68(1) provides that: "The Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so."

[27]Rule 68(2) further states that: "A judgment under reconsideration may be confirmed, varied or revoked." 19. Rule 68(3) adds: "If the judgment under reconsideration is revoked the Tribunal may take the decision again. In doing so, the Tribunal is not required to come to the same conclusion."

[28]Rule 69 addresses the procedure for making an application for reconsideration, stating: "Except where it is made in the course of a hearing, an application for reconsideration must be made in writing setting out why reconsideration is necessary and must be sent to the Tribunal within 14 days of the later of—(a) the date on which the written record of the judgment sought to be reconsidered was sent to the parties, or (b) the date that the written reasons were sent, if these were sent separately."

[29]Rule 70(1) requires that: "The Tribunal must consider any application made under rule 69 (application for reconsideration)." 22. Rule 70(2) provides an important threshold test: "If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application must be refused, and the Tribunal must inform the parties of the refusal." Conclusion; applying the law to the undisputed facts

[30]S.49-51 of the EqA does not apply to the claimant. A ‘personal office’ is defined in S.49 as an office or post: to which a person is appointed to discharge a function personally under the direction of another person — S.49(2)(a), and in respect of which an appointed person is entitled to remuneration — S.49(2)(b). The claimant was not entitled to receive renumeration and there was no agreement to the effect that he should be paid a salary, and he was not. The fact the claimant was entitled to claim expenses and a meal allowance does not fall under the definition of renumeration. The claimant is merely being reimbursed for expenses incurred when attending meetings. The same point applies to the respondent providing the claimant with parking, a lanyard, a fixed meal allowance when attending meetings, IT programmes and technology to assist him at meetings. These are provided to assist the claimant to discharge his function when attending meetings in his capacity as a volunteer public governor representing the area in which he lived.

[31]S.52(5) provides in the Interpretation and exceptions “Appointment to an office or post does not include election to it”. Mr Gibson submitted that section 52(5) excludes those who are elected such as MP’s and councillors, and further, that section 50(2) does not apply to the claimant. I agree. The voluntary post of elected public governor is unpaid, it does not require regular attendance in a workplace. The claimant can choose not to attend meetings providing there is some attendance and he does not miss three consecutive meetings. This was the only obligation on the claimant in addition to his compliance with the “Seven principles of Public Life” set out in the Code and disclosing any conflicts of interest. Payment of the claimant’s expenses and meal allowance incurred when attending governor meetings do not fall under the definition of consideration. There is no arrangement between the claimant and respondent that the claimant was contractually obliged to render his personal service for a set number of hours, and the reference to the claimant not missing three consecutive meetings did not create a legal obligation that he should attend meetings. The requirement was an indication of what the respondent expected from its volunteer public governor, and it can be seen from the history of this matter that the claimant could resign, which he did, with no contractual remedy against him. In short, there was no contractual obligation on the claimant as a volunteer to carry out any work. There was no contractual obligation on the respondent to pay the claimant, who could resign at any stage without any contractual remedy being made against him. and the claimant was not “in employment” as defined by section 83(2) of the EqA as there was no employment under a contract of employment.

[32]The claimant refers to EU law in his written argument. A number of references appear not to be relevant to the issues in this case, for example, the list at para 22 in the Claimant’s document tilted “Legal Arguments.“ It is difficult to follow the claimant’s argument. I arranged for both parties to comment, if they so wish, on the decision of the Supreme Court in X v Mid Sussex Citizens Advice Bureau and anor (Equality and Human Rights Commission and ors intervening)

2013 ICR 249

, SC that there could be no reasonable doubt that the Directive did not cover voluntary activity. The case is not on all fours with the claimant’s facts, however, the principles set out by the Supreme Court are applicable.

[33]The Supreme Court considered the scope of the EU Equal Treatment Framework Directive (No.2000/78) (‘the Framework Directive’). The EqA implements this directive in national law. The Supreme Court held that the Directive, which outlaws discrimination in employment and ‘occupation,’ does not extend to voluntary workers who have no contractual relationship with the ‘employer.’ Lord Mance held the reference in the Directive to ‘access… to occupation’ contemplates access to a sector of the market, rather than to particular employment or self-employment; in that sense, it covers the latter two concepts at a higher level. The word ‘occupational’ is also used in an umbrella sense, to cover differences in treatment justified in relation to either employment or self-employment. Once ‘occupation’ is understood in that sense, it would be contradictory to treat it as operating at the same level as employment and self-employment or as envisaging voluntary activity.” Lord Mance rejected the argument that a tribunal should adopt a multifactorial assessment of whether a particular volunteer is covered by the Directive. In his view, such an assessment would lead to uncertainty and disputes, and if it had been intended that some, but not all, volunteers were to be covered, then the Directive would surely have included some indication of where the line should be drawn. The Supreme Court considered that there could be no reasonable doubt that the Directive did not cover voluntary activity. This decision that the Framework Directive does not extend to volunteers remains significant as the Equality Directives and relevant European Court of Justice case law, was preserved as it stood on that date and effectively incorporated into domestic law by the European Union (Withdrawal) Act 2018. The Supreme Court’s decision remains a binding authority as to the scope of the Framework Directive and the EqA, and it confirms beyond doubt, that the claimant, who was a unpaid volunteer, was “not in employment” for the purpose of section 20-21 of the EqA. The claimant’s response to the Tribunal letter dated 11 July 2025.

[34]The claimant has sent to the Tribunal seventeen individual communications between the 12 and 21 July 2025 which I will deal with briefly as follows: 34.1 The claimant does not accept X v Mid Sussex Citizens Advice Bureau and anor (above) can be applied to his case. The claimant submitted that “the Respondent had a Volunteering Services Policy/Procedure during the entirety of the Claimant’s role as a governor, which set out completely different terms and conditions (and a different appointment process) to those connected to the Claimant’s former role with the Respondent as Public Governor for Bidston and Claughton… volunteers were entitled to a “flu vaccination”, “annual appraisal and personal development plan”, “apply for internal trust vacancies”, “access to confidential counselling” access to knowledge and library services”, “access to Trust staff networks e.g. WUTH Sunflowers” (network for disabled staff). In addition, volunteers (prior to starting) were subject to identity checks, right to work checks, two references, DBS check, occupational health clearance, having to attend the Trust’s Corporate induction as well as (by application of other policies) various mandatory training such as data…”

[35]The information provided by the claimant is new information that was not before me or touched upon at the preliminary hearing. I take the view that even if there was satisfactory evidence before me that “volunteers” were entitled to flu jabs etc, this does not undermine the fact that the claimant volunteered to put himself forward for public election, her was elected and in this capacity took part in voluntary activities with no contractual relationship with the respondent. The claimant’s position fell well within the principles set out in X v Mid Sussex Citizens Advice Bureau and anor (above).

[36]The respondent provided a “Supplemental Skeleton Argument” which referred to the IDS Brief paras 5.16 and 5.17 including South East Sheffield Citizens Advice Bureau v Grayson

2004 ICR 1138

, EAT where the EAT cast considerable doubt on whether unpaid volunteers could be said to be in ‘employment’ for the purposes of the discrimination legislation, holding that the tribunal had erred in concluding that volunteers at a CAB who worked under an agreement that stipulated a ‘usual minimum weekly commitment’ of six hours were ‘employees’ for the purposes of the DDA.

[37]Mr Gibson submitted, referring to the EAT decision, that, in order for a volunteer worker to be found to be an employee under either a contract of service or a contract personally to do work, there must be an arrangement under which, in exchange for valuable consideration, the volunteer is contractually obliged to render services to, or work personally for, the employer. The crucial question, said the EAT, was whether the volunteer agreement imposed a contractual obligation on the CAB to provide work for the volunteer and on the volunteer personally to do any work so provided. In the EAT’s view, the phrase ‘usual minimum commitment’ in the volunteer agreement simply indicated what the CAB reasonably expected of its volunteers and did not create a legal obligation that they must work those hours. The work expected of them was unpaid and expressed to be voluntary. (The EAT did not think that the provision of training, supervision, experience and an indemnity against expenses and negligence liability could be viewed as consideration by the CAB for a minimum work commitment on the part of the volunteer.) Furthermore, it was open to a volunteer at any point, either with or without notice, to withdraw his or her services from the CAB, in which event the CAB would have no contractual remedy against him or her — something the EAT regarded as being a crucial element of a contractual obligation. On that basis, the EAT concluded that there was no contractual obligation on the volunteers to do any work and therefore they were not in ‘employment’ within the meaning of the DDA.

[38]I do not intend to deal with each argument raised by the claimant, given my findings in relation to his position as a volunteer. However, the claimant refers to the Supreme Court decision in Gilham v Ministry of Justice (Protect intervening)

2019 ICR 1655

, SC.

[39]It is notable Judicial office holders are now expressly protected against discrimination, harassment and victimisation under Ss.50 and 51 of the EqA. In this regard, S.50(2)(d), which explicitly covers all judicial appointments made by the Lord Chief Justice or the Senior President of Tribunals, was inserted into the EqA by the Crime and Courts Act 2013 with effect from 1 October 2013. The claimant submitted that Gilham was concerned with disability discrimination, which is incorrect. It is a case involving whistleblowing protection in the Employment Rights Act 1996 Pt IVA extended to the holders of judicial office. Withholding such protection constituted a breach of their rights under

ECHR art.14

read with art.10.. Put succinctly, the claimant argues that a magistrate (unlike other judicial holders) is an unpaid office holder and has protection under the EqA. As the EqA applies to a magistrate it should also apply to him. The claimant earlier in his oral submissions complains that as he was prevented from bringing a judicial review (for protection against whistleblowing detriment and not disability discrimination failure to make reasonable adjustments). His argument is that if he does not have the protection of the Employment Tribunal, it must follow he has no protection for discrimination involving an alleged failure to comply with the duty to make reasonable adjustments.

[40]Mr Gibson submitted Gilham (above) determined that a holder of a judicial office is a “worker” within the definition of the Employment Rights Act 1996, to enjoy the protection given to whistleblowers under Part IVA of that Act. That is the crux of the case, as set out in the conclusion in paragraphs 44 to 46, [pages 182-183]. It has no application whatsoever to the claimant who in any event is not making a claim under Part IVA of the 1996 Act. I agree. Further, I do not accept the claimant’s argument that his position was analogous to that of a magistrate, who goes through a stringent recruitment and training process (unlike the claimant) and once he or she accepts a sitting day they are required to attend the court on that day and perform their duties, unlike the claimant who is not required to attend each governor’s meeting.

[41]In conclusion, the claimant was not under a contractual obligation to do work, the respondent was not under a contractual obligation to pay the claimant for his voluntary role, there was no requirement for the claimant to do a set number of hours or days and the only requirement was for him to attend some board meetings with the result that there was no mutuality of obligation, there was no written contract, no disciplinary of grievance procedures, the claimant was not entitled to benefits in kind such as counselling in contrast to the respondent’s employees, and the claimant did not receive remuneration. The claimant denies he is a volunteer. He has been unable to establish the existence of an employment contract, and his claim for employment status fails. The claimant is in employment with an employer other than the respondent. He has brought this claim as a “test case” and yet he is fully aware of the differences between his employment and the obligations under the employment contract and his voluntary role with the respondent, underlined by the fact that the claimant sought counselling under the Volunteering Services Policy.

[42]The Tribunal does not have the jurisdiction to consider the claimant’s complaint of disability discrimination, which is dismissed.

[43]Having dismissed the claimant’s claim on jurisdictional grounds, there is no requirement for me to consider the strike out/deposit order application, which is dismissed.

[44]The claimant’s application for a stay and/or reconsideration is refused in the interests of justice. In short, there is no merit in this application. There is no reasonable prospect of the judgment being varied or revoked, as required by Rule 70(2) of the Employment Tribunals Rules of Procedure 2024. Approved by