Court of Appeal holds that volunteer without a contract is not protected by discrimination law.
In this case the Court of Appeal held that a CAB voluntary worker, whose volunteer arrangement was non-contractual, could not bring a claim against the CAB under the Disability Discrimination Act 1995 (DDA).
Whether the individual, X, had protection depended on whether her circumstances fell within the Disability Discrimination Act 1995 when read in conjunction with the EC Framework Directive (which establishes a general framework for equal treatment in employment and occupation). Elias LJ (former President of the EAT) held that the EC Framework Directive does not seek to give effect to the principle of non-discrimination “in all areas of human activity”, but is limited to what might be described as “activities in the labour market”.
In relation to protection under domestic law, Elias LJ held that persons primarily protected by the DDA are those who have contracts; whether it be a contract of service or a contract for services. In the absence of any contract, the person providing the work or services cannot be “in employment” at all. X neither fell within any of the other special provisions in the DDA relating to those without contracts (such as barristers or office holders), nor could her voluntary work be said to constitute “vocational training”.
This case follows in the footsteps of Muschett v HM Prisons (reported in the November 2010 issue of Employment eBulletin) in which it was held that an agency temporary worker did not have unfair dismissal or discrimination protection. The court’s decision further emphasises the judicial view of the limited scope of its obligation to interpret EU law purposively.
The case is unlikely to have an impact on the vast majority of employers, and indeed it remains unwise to allow discriminatory behaviour against individuals to go unchecked on the basis that they are “only volunteers”. This is because the courts are ready and willing to imply a contractual relationship in the absence of any written agreement, and the existence of any form of remuneration might well have resulted in a different decision in this case.
X applied on 28 April 2006 to be a volunteer with the Mid Sussex CAB. Her purpose in seeking the post was to obtain qualifications and experience to establish her own business. She was given a ‘volunteer agreement’ which was described as being "binding in honour only … and not a contract of employment or legally binding".
No attendance records were kept for volunteers, but X frequently did not attend the CAB on the days she was expected. X was subsequently asked by the CAB to cease to attending as a volunteer. X submitted that the reason for this request was connected to her disability.