The claimant sought payment for arrears of pay for work carried out by for the respondents. The claimant in her claim stated she had asked on three occasions whether the respondents wanted her to leave, money being the issue, but that they insisted she stay and promised payment. The respondents resisted the claim by arguing that the claimant was not an employee or worker providing service but began a work experience placement arranged through Southern Regional College. The claimant commenced work experience with the third-named respondent and, in essence, the dispute concerned whether an offer of employment or payment was made to the claimant to take effect from the end of her course. Relevant facts were that the claimant was given her own business cards referring to her as sales support, with her mobile number to allow the claimant to refer on business from members of the Polish community and was also given a user name and password for the computer system. On a number of occasions the claimant requested payment for her services but eventually left after no payment was forthcoming.

The tribunal found that there was no express oral agreement made between the claimant and respondents. The tribunal also held that no implied agreement existed and cited the considerable time which passed, almost six months in total, during which time the claimant did not receive any payment but still was prepared to attend the respondent’s offices daily. Instead, it was held that she volunteered to continue her work experience without any offer of payment and was precluded from claiming the national minimum for work done for the respondents.


Practical lessons from this decision

The decision of the tribunal brings some clarity to the distinction between volunteers and workers; with the latter being covered by the National Minimum Wage Act 1998. Whilst tribunals always consider a multitude of factors in drawing such distinctions, the key consideration here was the sheer amount of time the claimant was prepared to work without receipt of any payment. The fact that the claimant began her tenure as part of a work-experience programme was not heavily relied on but was surely an important factor. Employers are likely to safeguard themselves by ensuring the status of such individuals is clarified early on and periodically reviewed.

As ever, full case decisions for NI cases are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/