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Who volunteers to be discriminated against?

21 January 13

Implications of the Supreme Court decision in which a CAB volunteer failed in her claim for protection under the disability dicrimination legislation

by David Hoey

A recent decision from the UK Supreme Court, X v Mid Sussex Citizens Advice Bureau [2012] UKSC 59, has confirmed the limitations of the protection against disability discrimination for volunteers. This short article summarises the facts and some of the legal and practical issues arising.

The facts

The individual in this case (the appellant), following an interview, became a volunteer at the Citizens Advice Bureau on 12 May 2006. The position was unpaid and both parties signed a volunteer agreement that said: “This agreement is binding in honour only and is not a contract of employment or legally binding.”

The appellant’s position was that on 21 May 2007, she was asked to cease to act as a volunteer for the CAB and that this amounted to unlawful disability discrimination. An employment tribunal claim was raised. The first issue to be determined was whether the legislation protected volunteers, i.e. those who were not employees.

Earlier courts had held that the employment tribunal had no jurisdiction to hear the appellant’s claim, on the basis that volunteers did not fall within the legislation’s protection. The Supreme Court considered this question and handed down its judgment on 12 December 2012.

Was a volunteer an employee?

The Disability Discrimination Act 1995 (the Equality Act 2010’s predecessor) protected disabled persons by stating that it is unlawful for an employer to discriminate against a disabled person “by dismissing him, or subjecting him to any other detriment”.

The appellant sought to rely on this provision to establish that the employment tribunal could hear her claim. This proposition was rejected by the Supreme Court. The definition of “employment” under the relevant legislation means “employment under a contract of service”.

The appellant did not have a contract of service, or indeed any other contract. The volunteer agreement stated explicitly that it was not a contract of employment, nor was it to be legally binding. Without a contract, the appellant did not fall within the scope of the Act.

Did the European dimension help?

The appellant’s case was that, notwithstanding what the UK legislation says, she should be entitled to protection as a volunteer on account of Council Directive 2000/78/EC, establishing a general framework for equal treatment in employment and occupations (“the Framework Directive”).

The appellant’s position was that the Framework Directive shows that volunteers in her position were intended to be covered by the protection against discrimination on the grounds of disability.

The Framework Directive applies to all persons in relation to “conditions for access to employment, to self-employment or to occupations”, and “employment and working conditions, including dismissals and pay”.

The Supreme Court undertook a thorough review of the case law, historical documentation in relation to the inception of the Directive, and the wording of the Directive in other foreign languages, and concluded that the Directive was not intended to apply to volunteers. The court concluded that there was no scope for a referral to the Court of Justice, there being no reasonable doubt that the Framework Directive did not cover voluntary activity and was not intended to do so. Not every type of activity was covered. Volunteers were not protected.

What now?

The Supreme Court is clearly conscious of the spirit of the principle of protection against discrimination on the grounds of disability and all other protected characteristics. In the very first paragraph of its judgment, the court states that a responsible organisation would want to combat discrimination on the grounds of disability, which ought to include the avoidance of discriminatory conduct against volunteers as much as employees, but neither domestic nor European law provides volunteers with this protection. As the provisions under consideration in this case have in effect been replicated in the Equality Act, the judgment is likely to reflect the modern position.

This is an important judgment for those engaging volunteers. While genuine volunteers may not have the protection of disability discrimination laws, there is still the potential for such individuals to acquire other rights, potentially even employment rights, depending upon how the relationship develops.

Care will, of course, still require to be taken in ensuring that all documentation that is drafted is carefully prepared, and that all of the risks in this area are fully considered and a fair approach taken not only with regards to the constitution of the relationship but also as the relationship develops (and ends).

Going forward

Many organisations engaging volunteers may steer away from issuing any sort of formal written agreement, thinking that the absence of documentation might bolster the non-contractual aspect of the relationship. This is unlikely to be the most effective approach, since a carefully worded volunteer agreement that sets out the boundaries of the relationship (as seen in the above case) may well be more effective in defending any claim by a volunteer that they are an employee or a worker and as such are entitled to rights that such individuals have.

Such agreements should clearly state that the relationship is not legally binding, and specifically that the volunteers are not employees (with no employment rights). It is also important to emphasise the voluntary nature of the relationship and how that will work in practice (such as in relation to working hours, expenses etc).

Ultimately, courts and tribunals will look carefully at the true nature of the relationship to assess its legal status. Those who seek to mask genuine employment contracts as “volunteer agreements” are unlikely to be successful.

Further, it is not necessarily the case that volunteers have no rights, since there are a number of legal rights that will apply to volunteers as much as other workers, including health and safety, data protection etc. But the position in relation to employment law is becoming clear, with limited employment rights conferred upon those who genuinely choose to volunteer in the workplace.

Failing to prepare is preparing to fail. As ever, specialist advice is recommended given the pitfalls and risks in this thorny and complex area of practice.

David Hoey is a partner with bto solicitors, Glasgow, and an accredited specialist in employment law

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