Many people give generously of their time and expertise to serve as non-executive directors of bodies whose worthy aims are close to their hearts. However, as one case showed, they are often not entitled to whistleblowing and other protections afforded to those classified as ‘workers’ under employment law.
The case concerned a man who served as a non-executive director of a sporting body until his removal by resolution of the board. He lodged Employment Tribunal (ET) proceedings asserting that he had been subjected to detriments for making protected disclosures – in layperson’s terms, whistleblowing.
The body wholly denied his allegations and, in order to proceed with his claim, he first had to establish that he was a worker, as defined by Section 230(3)(b) of the Employment Rights Act 1996. That issue was addressed at a preliminary hearing.
Ruling on the matter, the ET noted that, in accordance with the body’s articles of association, he committed 15-20 days a year to his role. There was an expectation that he would undergo a certain amount of training and, in recognition of his services, he received an honorarium of £1,500 a year, plus expenses. He was not permitted to appoint a substitute to attend meetings in his place.
On the other hand, he had no contract of employment and was under no obligation to attend board or committee meetings. He was free to resign his post at any time without giving notice. Although the board’s chairman set the agenda and led the body’s overall strategy, he was not under her managerial control.
The articles of association labelled his role as voluntary, but that was not decisive. The fact that he held a full-time consultancy position elsewhere was a matter of no significance. The ET noted, however, that he could not in any sense be described as a vulnerable individual, in a position of subordination or dependence, who might have to rely on the protection of the law to enforce his individual rights.
He was free to, and did, express his personal views on any given topic. He was able to attend meetings as and when he saw fit and he was independent of other board members, including the chairman and the body’s chief executive officer, who was its sole employee. The dismissal of his claim was the necessary consequence of the ET’s finding that he was not a worker.