Catt v English Table Tennis Association Ltd

The appeal concerned whether a person holding office as an elected non-executive director was a "worker" for the purposes of section 230(3)(b) Employment Rights Act 1996 and therefore protected by the whistleblowing provisions under section 47B ERA. The Employment Tribunal had dismissed the claimant's claim on the basis that he was not a worker. The Employment Appeal Tribunal allowed the appeal and remitted the matter for rehearing because the ET failed to make a clear finding on the primary question whether there was a contract under which the claimant undertook to perform work or services for the first respondent (the first limb of the limb (b) test from Uber). The ET had focused unduly on vulnerability, subordination and dependency (factors of limited relevance to a non-executive director) and had not engaged sufficiently with factors particular to office-holders (as discussed in Gilham, Percy and related authority) such as the manner of engagement, the source and character of governing rules, and the overall context. The ET also failed to address the claimant's alternative Convention argument under articles 10 and 14 ECHR.

The claimant, an elected deputy chairman and non-executive director of the governing body for table tennis in England, brought a whistleblowing claim under section 47B Employment Rights Act 1996 alleging detriments for making protected disclosures. The ET (Watford) held he was not a "worker" under section 230(3)(b) ERA and dismissed the claim. On appeal to the EAT the central issue was whether there was a contract between the claimant and the first respondent such that he undertook to perform work or services for that body (the first element of the limb (b) definition as explained in Uber).

Key facts and findings by the ET included that the claimant was elected to a four-year term, received a modest honorarium and expenses, had a described time commitment (15–20 days per annum), was not an employee, had an induction, was given payslips and an employee number but no employee entitlements, could be removed by a board vote, and was free to express his views and to resign without notice. The ET characterised the claimant as not subordinate or vulnerable and concluded there was no contractual obligation amounting to worker status.

The EAT concluded the ET had not answered the essential preliminary question whether there existed a contract between the parties whereby the claimant undertook to perform work or services personally for the first respondent. Instead, the ET concentrated on subordination/dependency considerations drawn from Uber, which are of limited direct relevance to a non-executive office-holder. The EAT explained that, in cases involving office-holders, the tribunal should look to the manner of engagement, the source and character of the rules governing service, and the overall context (drawing on Gilham, Percy and related authorities). Because the ET did not make a clear finding on the existence and character of any contract and did not properly engage with the claimant's alternative ECHR argument, the appeal was allowed and the case remitted for rehearing before a differently constituted Employment Tribunal.

Relief sought: the claimant sought determination of his whistleblowing claim under section 47B ERA; on appeal he sought to overturn the ET's preliminary finding on worker status. Issues framed by the court: (i) whether there was a contract under which the claimant undertook to perform work or services for the first respondent (limb (b) element (1)); (ii) whether the ET applied appropriate factors when assessing worker status for an office-holder; (iii) whether the ET engaged with the claimant's alternative ECHR argument (article 10 read with article 14). Reasoning: the EAT held that determining whether a contract exists is the necessary first step; the ET did not perform that analysis clearly and misplaced emphasis on vulnerability/subordination, so remittal for a fresh hearing was required. The EAT also noted the ET did not address the claimant's ECHR argument and that point can be considered at the remitted hearing.

Appeal allowed. The Employment Tribunal had failed to make a clear determination whether there was a contract whereby the claimant undertook to perform work or services for the first respondent (the primary limb (b) enquiry). The ET focused on subordination and vulnerability (factors derived from Uber) which were of limited relevance to a non-executive office-holder and did not engage with office-holder specific factors (manner of engagement, governing rules, overall context) or adequately address the claimant's alternative ECHR argument. The matter is remitted to a differently constituted Employment Tribunal for rehearing.

Appeal from the Watford Employment Tribunal (Employment Judge Bloom, sitting alone, 7 July 2021) where the claimant's whistleblowing claim was dismissed on the basis he was not a "worker" under section 230(3)(b) ERA. The appeal was heard in the Employment Appeal Tribunal and allowed ([2022] EAT 125).