Prison Officers Association and others v Gough and another EAT/0405/09

employment status | two employers

The Employment Appeal Tribunal (EAT) has upheld an employment tribunal decision that an individual was an employee of a union, even though he was also employed by another employer. Employees can be employed by two employers at the same time, provided that the jobs are compatible with each other.

Mr Gough was employed by the prison service. The issue in the case was whether or not he was an employee of the Prison Officers Association (POA), a union, at the same time. He was elected as a national executive officer (NEO) on the POA’s national executive committee. As well as receiving a salary from the prison service, he received an annual payment known as a "miscellaneous expenditure grant" of £14,000 per annum from the POA. This payment was in addition to expenses and was subject to tax and national insurance.

Mr Gough’s duties as an NEO took up 15% of his time and were allied to other duties of an NEO of assisting members of the POA in relation to their employment, such as in disputes, grievances and disciplinary matters. At times, other duties occupied almost 85% of his time. NEOs could be subject to a disciplinary process if they failed to protect and promote the best interests of the membership. They were also obliged to carry out duties allocated by the Chairman or General Secretary, and were answerable to full-time officers.

The employment tribunal referred to the factors set out in 102 Social Club & Institute Ltd v Bickerton [1977] ICR 911 EAT for deciding whether or not the secretary of a members’ club might be an employee, namely:

• whether a payment was an honorarium or salary;
• whether or not the payment was fixed in advance;
• whether or not the arrangements conferred a right to payment;
• the size of the payment;
• whether the individual exercised the functions of an independent office or was subject to control and orders;
• the extent and weight of the duties performed; and
• the description of the payment in the minute or resolution authorising it, and its treatment in the accounts for tax and national insurance purposes.

Applying these factors to the present case, the employment tribunal held that Mr Gough was an employee of the POA. He worked full time in return for a not insubstantial payment, which was fixed in advance. There was a degree of control and mutuality of obligation and the range of duties went beyond, and were not defined by, the constitution. The POA appealed.

The EAT held that Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others [2005] IRLR 983 CA makes clear that it is possible for an individual to have two jobs at the same time, provided that they are compatible with each other. The EAT rejected the POA’s argument that the employment tribunal had referred to the importance of the arrangement with the prison service but had not dealt with this issue. The tribunal had considered the arrangement and found that Mr Gough was an employee of the prison service with a full salary, pension and terms and conditions, but that he was released to the POA to carry out the required duties. However, this did not resolve the issue. The critical issue was the relationship between Mr Gough and the POA, which the tribunal had considered. The fact that the prison service paid Mr Gough was not relevant to establishing whether or not he was an employee of the POA. The appeal was dismissed.

Case transcript of Prison Officers Association and others v Gough and another (Microsoft Word format, 70K) (on the EAT website)

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