When is a Union Official not a Union Employee?

Such was the question considered by the EAT in Fire Brigades Union v Embery (2023 EAT 51).

Whilst it is commonplace for employees to have more than one employer at different times of the day (a day job and an evening job) it is not commonplace for employees to have two employers at the same time.

The general rule is that an employee cannot simultaneously have two employers (see Cairns v Visteon UK Ltd [2007] IRLR 175 in which the EAT held it unnecessary to find a contract of employment for an agency worker with the end user where one already existed with the agency). 

However, on rare occasions, a situation can arise where two employments can be sustained at the same time. In Prison Officers Association v Gough UKEAT/0405/09, a Union Official received remuneration from the Union as well as receiving his prison officer’s pay from the Government.  It was held that the two employments were not incompatible with each other.

In the Embery case, the Firefighter had been released from firefighting duties to carry out full time work for the Fire Brigades Union.  He was paid by the London Fire Brigade albeit that the Union reimbursed the Fire Brigade in an equal amount.  He also received a relatively low cash allowance from the Union.

When he was removed from office by the Union, he claimed unfair dismissal as against the Union.

At first instance, the Employment Tribunal found that the existence of a cash allowance paid by the Union was sufficient to create an inference of employment.

The EAT disagreed and held that there were not enough similarities between Emery and Gough insofar as the amounts paid to each by their respective unions (with Embery receiving only a ‘top up’ amount as opposed to Gough’s salary, car and ancillary expenses).  It therefore held that Emery did not have two simultaneous employments and the FBU could not be liable for unfair dismissal (as Mr Embery was still an employee of the Brigade which had not dismissed him and no doubt welcomed him back as a firefighter).

Police Forces take note when considering the position of officers engaged full time on Police Federation duties.

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Authors

Victoria von Wachter

Call 1997

Related areas

Employment

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