"

EMPLOYMENT TRIBUNALS
Caradog House, 1-6 St Andrews Place, Cardiff,
CF10 3BE
Office : 029 2067 8100
Fax: 0870 761 7635
DX 33027 Cardiff

To: Mr JE Bishop
8 Heol-Y-Parc
Pontypridd
Rhondda Cynon Taff
CF381AN

e-mail: CardlffET@hmcts.gsi.gov.uk

Your Ref:
To: Ms S Isaacs
Eversheds
DX 33016
Cardiff
Your Ref:
Date
30 October 2013
Case Number: 1601801/2013

Claimant
MrJE Bishop

Respondent
Rhondda Cynon TafC BC on
Behalf of Pare Lewis County
Primary School
& Others

EMPLOYMENT TRIBUNAL JUDGMENT

A copy of the Employment Tribunal's judgment is enclosed. There is important Information in the
booklet 'The Judgment' which you should read. The booklet can be found on our website at
www.justice.gov.uk/tribunals/employment/claims/booklets
If you do not have access to the internet, paper copies can be obtained by telephoning the tribunal
office dealing with the claim.
The Judgment booklet explains that you may request the employment tribunal to reconsider a
judgment or a decision. It also explains the appeal process to the Employment Appeal Tribunal.
These processes are quite different, and you will need to decide whether to follow either or both.
Both are subject to strict time limits. An application for a reconsideration must be made
within 14 days of the date the decision was sent to you. An application to appeal must generally
be made within 42 days of the date the decision was sent to you: but there are exceptions: see
the booklet.
The booklet also explains about asking for written reasons for the judgment (if they are not
included with the judgment). These will almost always be necessary if you wish to appeal. You
must apply for reasons (if not included with the judgment) within 14 days of the date on which
the judgment was sent. If you do so, the 42 day time limit for appeal runs from when these
reasons were sent to you. Otherwise time runs from the date the judgment was sent to you or
your representative.
10.6 Judgment cover letter - rule 61

For further information, it is important that you read the Judgment booklet. You may find further
information about the EAT atwww.justice.gov.ukltribunals/employment-appeals
An appeal form can be obtained from the Employment Appeal Tribunal at: Employment Appeal
Tribunal, Second Floor, Fleetbank House, 2-6 Salisbury Square. London EC4Y 8JX or in
Scotland at 52 Melville Street, Edinburgh EH3 7HS.
Yours faithfully,

MRPJACKSON
For the Tribunal Office

10.6 Judgment cover letter- rule 61

Case No: 1601801/2013

EMPLOYMENT TRIBUNALS
PRELIMINARY HEARING
BETWEEN
CLAIMANT
MRJ E BISHOP

ON:

RESPONDENT
RHONDDA CYNON TAFF
COUNTY BOROUGH COUNCIL
ON BEHALF OF PARC LEWIS
COUNTY PRIMARY SCHOOL
18 OCTOBER 2013

HELD AT:

CARDIFF

BEFORE:

EMPLOYMENT JUDGE R HARPER

(SITTING ALONE)

REPRESENTATION:
FOR THE CLAIMANT:
FOR THE RESPONDENT:

IN PERSON
MRS ISAAC (SOLICITOR)

JUDGMENT
The judgment of the Tribunal is that:
1.

The claimant was not a worker and therefore the Tribunal does not
have jurisdiction to hear his claim under Section 478 of the
Employment Rights Act 1996.

REASONS
1.

This hearing was convened to determine the relationship between Mr

Bishop and the first two respondents. It is a claim which alleges public
interest detriment under Section 478 of the Employment Rights Act
1996. It is clear that in order to be able to bring such a claim the
claimant has to bring himself within the definition of "worker." The
definition of worker is to be found in Section 230 of the Employment
Rights Act but there is an extension of the definition of worker in
Section 43K of the same Act in relation to claims of whistle-blowing. As
will become apparent from this Judgment, none of those extensions in
Section 43K apply in this case.

- .

Case No: 1601801/2013

2.

In order to resolve the case the Tribunal has

affirmation from the claimant and he has received
Mr Mallins, to whom the Tribunal is grateful.
Asperger's Syndrome and Mr Mallins' help
throughout the hearing.

heard evidence on
the assistance from
The claimant has
was considerable

In order to enable the claimant properly to give his evidence, the

Tribunal allowed the claimant to produce an extensive mind map
document. Initially the claimant was unhappy for this to be disclosed to
the respondent but ultimately he agreed and this was treated as though
it was his evidence and statement. He confirmed that his evidence was
truthful. The claimant was subject to some cross-examination from Mrs
Isaac, the solicitor for the respondent. The respondent did not call any
evidence.
The Tribunal has had regard to statute law and the regulations and has
also considered the cases of Clyde & Co v Winkelhof 2012 EWCA CIV
1207; Douglas v Birmingham City Council EAT 0518/02; Autoclenz v
Belcher; and Xv Mid Sussex CAB 2012 UK SC59. In relation to that
latter case, this was a case which was produced by the Employment
Judge for the parties at the beginning of the hearing as the most recent
example of a Supreme Court decision in relation to the issue of
volunteers. That case was in relation to a discrimination claim not the
whistle-blowing claim that is before this Tribunal. However certain
parallels can be drawn. In that case it was found that the claimant was
not covered by the Framework Directive because he was a volunteer.
3.

The claimant's case is a complicated one. He asserts that he is an

office holder and an employee and therefore by going through those
hoops meets the definition of being a worker to enable him to make the
claim. The respondents position is much easier in the sense that It
submits that the claimant is a volunteer and volunteers are not workers
and therefore he is not covered by the Act.
For the avoidance of doubt the Tribunal noted that throughout the
hearing the claimant made repeated reference to a company which he
runs completely separate from his work as a Governor. There are no
issues arising from his running of that company which are of any
relevance to the determination of this claim.

4.

One of the other matters upon which the claimant placed great reliance
was the code of practice. This refers to "all Governors are equal." He
therefore makes the point that in relation to other types of Governor, for
example a staff Governor, if he Is equal to a staff Governor then
therefore he must also have the benefit of the disciplinary and
grievance procedures to which that staff Governor was entitled. If
correct this is a very considerable intellectual leap. It defied all logic.
Simply' because there is a description of all Governors being equal it is
quite obvious from the reference that all Governors are equal in terms
of their status on the committee and have equal voting rights. It
certainly does not imply that the claimant is entitled to terms and
conditions with the staff members who served also as Governors.
-2-

Case No: 1601801/2013

5.

The claimant was appointed as a Minor Authority Governor of Pare

Lewis Primary School which is a school maintained by Rhondda Cynon
Taff Council. He was in receipt of a letter dated 22 December 2011
appointing him to this role. This was his second role as a Governor
because he had been initially disqualified from continuing to sit as a
Governor on a previous appointment because he failed to attend the
meetings for over 6 months. This second appointment was for a period
of 4 years and the letter sets out certain obligations particularly in the
second paragraph of the letter. There was a requirement in the last
sentence of the second paragraph that if he failed to attend any internal
meetings he should present an apology and there was provision for
that apology to be accepted or not. There was therefore nothing
stopping him apologising for attendance. It would be highly unlikely if
anybody challenged the reason for the apology. It was stated that the
meetings would be held at the School. That is simply a letter of
appointment. It is not a contract of employment. It Is not an offer of
terms and conditions of employment because there are numerous
matters in this letter which do not deal with the requirements in the
Employment Rights Act.

6.

One of the factors, which is an important one, is to examine what was

the intention of the parties when this relationship started. The Tribunal,
taking judicial notice, would take the view that the community at large
would regard Governors as being volunteers. The Tribunal makes a
finding of fact that upon receipt of this letter of appointment it was the
intention of the respondent, and also the intention of the claimant
receiving it, that it was simply an appointment to the public position of
Governor. It was not intended, and neither did it seek, to impose any
employment obligations. Neither was it intended, or seek, to create the
position as a worker. It is the intentions of the parties at the time that is
.
of considerable importance in this case.

7.

Ed~cat!on in Wal~s has to be considered under various pieces of

leg1slat1on. The Tnb~nal is ~rateful to Mrs Isaac's for a very thorough
skele~on argument m relation to her case drawing the Tribunal's
attention t? the relevant provisions. Section 19(1) of the Education Act
20~2 provides 'each maintained school shall have a governing body
which .sha!I be a b~y corporate constituted in accordance with
regulat1~ns ; The claimant places considerable reliance on the
e:ress1on body corporate' to say that, in effect, therefore the body to
w . rch he had been elected was akin to a board of directors The
Tnbu~al does not find that that was the intention of Parliam~nt in
e.nactmg the legislation in this way and rejects that argument It .
simply. a ge~eric description of the governing body. The applfcab::
regulations m '-:Vales are the Government of Maintained Sch
1
t~=g~:; 0.n~2005 which set out the constitution of gover~~';

g,:~::>

~t,~tl:e~v:~~~:fi;~~ ~~-~~~t~n::o~~:r!1:eh
0

1~

th~

nothing at all which refers to ~n cance, in those regulatrons, there is

the Governors might hold

b . y employ~ent or worker6
Y virtue of the,r governorship

rights WhiCh
T ...

,,,ere also

Case No: 1601801/2013

has to be consideration of the Staff in Maintained Schools (Wales)
Regulations 2006 which provide a framework for the employment or
engagement of workers of staff at schools In Wales. No reference
again ls made there as to the engagement of Govemors within those
regulations affording them any rights at all.
The respondent has produced documentation, which, although not
binding upon the Tribunal, is of enormous persuasive relevance. The
Tribunal has found it helpful when looking at a document called 'About
Governors Wales' which in paragraph 3 states that 'the work of
Governors Wales recognises that Governors voluntarily give their time'.
There is then a handbook produced within which relevant provisions
are set out in Mrs Isaac's submissions. These describe the Governor
as a volunteer. It goes on to describe other attributes and roles.
Paragraph 30 under the heading 'Welsh Government' states that
thousands of Governors serving on the governing bodies of schools
have been described as an unpaid army of volunteers. Governors are
volunteers and discharge their responsibilities without payment. They
are responsible for ensuring that Welsh Government policies of the
schools are implemented locally and must discharge their duties with
regard to UK legislation. An extract from the Welsh Government
website on school governors states 'a Governor is a volunteer who
cares about teaching, learning and children'.
In order to bring the claim the claimant has to get himself within the
definition of worker. The claimant was not employed under a contract
of employment neither could he be described as a self-employed
person. There Is no engagement by the school or the governing body
of a Governor since they are elected in accordance with the regulations
and their appointment and removal from the post are wholly governed
by those regulations. It is clear that the claimant never received any
payment whatsoever for his position. He says that in other schools he
might have been entitled to claim expenses and possibly an
attendance allowance. That is irrelevant. The Tribunal is concerned
with what happened in this school. At this school there was no
entitlement to any remuneration at all. The school made it clear they
would not even pay expenses because that would eat into their
educational budget.
Mrs Isaacs refers to the judicial litigation of O'Brien v Ministry ~f Justice
2013. There it was found that although a judicial office holder 1s exactly
that an office holder the person concerned can also be a worker as
defi~ed. However sh~ makes the distinction that t~is ~se does not
assist the claimant. The Tribunal agrees. In the Judicial world the
judges have specific terms and conditions oJ employment; they are
entitled to receive a pension; entitled to receive a fee for each day of
k if part time and entitled to some benefits Including holiday pay.
~~~e of those additional aspects applied to this claimant.
The claimant gave his evidence in a very disc~plined, an? ;~oguf:~
Th Tr'bunal has spent a long time re-ana Y
~~~o:~i
the ~lai~ant produced. The Tribunal finds that the most

;~f

-4-

Case No: 1601801/2013

logical way of approaching his mind map is to look firstly at the section
of it relating to Governor. In relation to the features shown on his mind
map relating to Governor it is clear that the claimant cares about
teaching, learning and children. He says that he became a Governor to
make sure that other children were treated somewhat better than he
had been when he was younger in terms of his schooling. He clearly
represents an interest of the community being a Governor but he was a
minor Authority Governor, he was not a community Governor, and
neither was he a staff Governor.
11 .

The claimant was part of a team which accepted responsibility for

everything a school does in the sense that the board of Governors ran
the school and could appoint and dismiss the head teacher. He had
time to commit to meetings and other occasions when needed although
there was no evidence that he had to attend any other meetings than
the full meetings of the governing board. He was able to act as a
critical friend who supports the school but is still able to cast a critical
eye on how the school works. To an extent he was also a link between
the parents, the local community, the Local Authority and the school
and he was also responsible for making sure Welsh Government
policies were implemented locally. All those issues points to the
claimant being a Governor. So where does that argument develop ?
Even on the claimant's mind map it states that 'Governors are
volunteers and discharge their responsibilities without payment. A
Governor is a volunteer who cares about teaching, learning and
children'. It then sets out the various obligations. He analyses the selfemployed contractor but the Tribunal has not found much assistance in
looking at the criteria for that. He was not a self employed contractor.
Having looked at the aspects of UGovernor" in his mind map, the
Tribunal then considers the aspects of the "office holder."

12.

Is the claimant an office holder? He does other work that is not related
to being a director. He is a director of another company that has
nothing to do with this school. It was clearly a regulatory appointment
not an appointment under a Trust Deed. It goes on to say, in the
documents extracted by the claimant, that office holders are neither
employees nor workers however, 'it is possible for someone to be an
office holder and employee if they have an employment contract with
the same company or organisation that meets the criteria for
employees'. Here he was a minor authority Governor. He was not a
teacher. He was not employed by any aspect of the school for any
reason.
For those people who were teachers and also staff Governors, clearly
they could well be office holders and employees but the claimant was
not. Here there was no contract or service agreement relating to the
claimant's appointment. He did not get a salary or any other form of
regular payment for his service. He did not get an honorarian.
The other aspect of the office holder's definition shown on the mind
map is a difficult intellectual exercise for the claimant because the
passage that he refers to says as follows 'They are effectively working

-5-

Case No: 1601801/2013

as an independent office and are not under the close supervision or
control of the appointing body'. It is difficult to argue this because on
the one hand he is arguing independence of office and therefore that
might go in his favour. However he is also saying that he is subject to
control of the appointing body which might or might not assist him. The
Tribunal was not satisfied that the claimant properly dealt with those
difficult unresolved conflicts In relation to that particular point and the
burden of proof of course falls on the claimant.
13.

The next aspect to analyze on the mind map are the points set out by
the claimant under the heading "employee." The reason that it is
important particularly to look at these aspects is that, as earlier
recorded, the claimant hopes to get to the definition of worker by
passing the definition of employee on the way. In the Tribunal's
judgment it is absolutely completely clear that the claimant was never
an employee and that was never the intention of the parties. To work
through some of the aspects that are highlighted on the mind map, was
he required to work regularly unless on leave or holiday or maternity
pay? He was required to attend a small number of meetings but he
could have apologised. It was highly unlikely that such apology would
be refused. Was he required to do a minimum number of hours and
expect to be paid for time worked? The answer was that he was
required to do a minimum number of meetings but there was no
expectation at all especially at this school for any remuneration
however widely that expression might be defined. Was there a
manager or supervisor responsible for his workload? The whole point
about appointing Governors is that they bring to the role an
independence of thought and approach. He was not subject to any
management or supervision in the sense that is referred to in this
passage.

14.

The most telling point, and this was pointed out by the Employment
Judge to the claimant during the course of the case, relates to whether
he could send somebody else to do his work: was there, to use the
legal expression, 'mutuality of obligation'? This was a public
appointment. He could not arrange a substitute. He had to undertake
the work himself. It is that aspect, almost alone, which persuades the
Tribunal that this claimant was not an employee but the other factors
are also relevant. Was the claimant entitled to contractual, statutory
sick or paternity pay? He was not. Was he entitled to join the schools
or Local Authority pension scheme? He was not. Did the Local
Authority or schools disciplinary and grievance procedure apply to him?
They did not. It is true to say that the claimant was required to attend
the school premises to attend the meeting so that is a factor in his
favour but it is substantially outweighed by the other factors. Did his
contract set out redundancy procedures and was he entitled to a
redundancy payment if the qualify period and so on applied? He was
not. Did the business provide the materials, tools and equipment for his
work? Yes they did. This is a factor In his favour but it is outweighed
substantially by the other factors. Did he have a contract or statement
of terms? He did not. Was he entitled to statutory sick pay, paternity

-6-

Case No: 1601801/2013

pay, adoption leave and pay, minimum notice, the right to request
flexible working? He was not.
15.

The claimant says he had the right to request. flexible working. What is
being referred to here is a specific set of regulations. His interpretation
of flexible working simply by indicating whether or not he would turn up
to a committee meeting is not covered by the Regulations.
The Tribunal finds that the claimant was not an employee. So, was he
a worker?

16.

Looking at the first aspect on the mind map in relation to "worker'' it is

true that the claimant was providing the services personally and not
done through a limited company. Indeed the Tribunal is certain that
there will be no Governor who will be engaged through a limited
company. The next question is whether the employer has to have work
for them to do as long as the contract or arrangement lasts? The
respondent does not. There is no obligation to insist that they arrange
any meetings at all for him to attend although it would be good practice
for there to be meetings, Does he have to turn up for work even though
the person does not want to? This has already been dealt with. Is there
any reward for money or benefit in kind ? Here the claimant says the
benefit in kind could amount to an escalation in personal confidence
and an enjoyment of the role. It is quite clear that that is not the legal
anticipated definition of "benefit in kind." It is another example of
unsustainable intellectual elasticity of argument. Did he have a contract
or other arrangement to do services or work personally ? He did not
have a contract or other arrangement. He had a letter of appointment
to a public office.
The claimant surprisingly urged upon the Tribunal that he believed that
he would be entitled to receive the national minimum wage. The
evidence was completely against him in relation to that. He said that he
supposed he would be entitled to paid holiday. He was not. He was not
entitled to statutory minimum length of rest breaks and there was no
issue of signing an opt out from the Working Time Regulations.

17.

Whether one analyses the factors on the mind map or whether one
looks at Section 230 and Section 43K, the inescapable conclusion here
is that even if the claimant was an office holder, which he may have
been, he was not an employee; he was not a worker; he was a
volunteer. Since he is not a worker then he cannot bring a claim Under
Section 478 of the Employment Rights Act. Therefore the Tribunal
does not have jurisdiction to deal with his claim.

Judgment posted to t"'"'"""'!llrties on

.~...
...

~ ............... .

ary of th/Tribunals

EMPLOYMENT JUDGE R HARPER

Dated:

28th October 2013

-7-