Do governors have a contract of employment?

In Mr D B Clarke v Governing Body of Lakeview School, the employment tribunal (ET) considered whether the claimant had a case for claiming race discrimination.

Facts of the case

Mr Clarke applied for the role of a governor at Lakeview School. His application was unsuccessful and he was notified of this on 9 October 2020. On 15 December 2020, he started Acas early conciliation and issued these proceedings for race discrimination on 23 December 2020.

Voluntary role

If Mr Clarke had been successful in his application, he would not have received remuneration and no allowances would have been paid. He would not have received a contract or individual paperwork. In essence, the role of a governor is a voluntary role.

ET decision

The ET concluded that there is no written contract. This conclusion was based on the fact that a contract requires acceptance and intention to create legal relations. The ET decided that there is difficulty here over the intention to create legal obligations given this is a voluntary role. No consideration passed between the parties and there was no intention to create legal relations. It was a voluntary role with no legally binding contract.

Employment

The question the ET considered was: would Mr Clarke have been employed under a contract to do the work personally in accordance with s83(2)(a) Equality Act 2010? This section states:

‘Employment’ means – employment under a contract of employment, a contract of apprenticeship or a contract personally to do work.

Mutuality of obligations

As part of deciding whether there was a contract in place, the ET also considered mutuality of obligations. There was no requirement to do a set number of hours, days or to put certain input into the role. There was a requirement to attend governors’ board meetings, but the ET did not find that this was enough to amount to mutuality of obligations.

Create legal contract

Mr Clarke gave evidence to the ET regarding his expectations from his experience with the role in another establishment. However, the ET concluded that these expectations did not result from an impression given by the school at a job interview or anything else of that nature. The ET stated that it cannot be said that there was offer and acceptance and they were not satisfied that there was any intention to create a legal contract on either side.

Part of a collective

The ET concluded that although the s83 Equality Act definition of ’employment’ is wider than the Employment Rights Act provisions, Mr Clarke did not have a contract in this case. The ET also stated that, although the definition is wider for discrimination cases, it is not wide enough to cover volunteers in all cases. Mr Clarke would not have been personally required to fulfil the role, there was no contract, no set obligations on either side and not even an obligation to attend all governors’ meetings throughout the term. The role was very much part of a collective and not based on any individual.

Claim dismissed

In conclusion, the ET panel stated that the decision did not sit comfortably with them, in that Mr Clarke fell outside the protection as a volunteer under the Equality Act. The ET did not come to any conclusion as to whether Mr Clarke was discriminated against because the jurisdiction issues meant that the claim must be dismissed.

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