This morning’s judgment from the Supreme Court has established that volunteers without a legally binding contract are not protected by either domestic or EU anti-discrimination law.
This case involves a HIV positive volunteer who alleged she had been prevented from continuing to volunteer at a CAB because of her disability. Given the employment tribunal’s factual decision that she did not have a contract with the CAB, the lower courts said it was clear that she was not covered by the Disability Discrimination Act. That was because protection for these purposes is limited to those working under a “contract personally to do any work”. The successor provisions in the Equality Act 2010 adopt exactly the same wording.
Before the Supreme Court the claimant focused her case on the scope of the Employment Framework Directive, which she argued was wide enough to cover volunteers like her. Her argument was rejected for a number of reasons, though they can all be seen as flowing from the history of equalities legislation, both in the UK and at EU level, which shows that it has been designed to address carefully defined situations, rather than provide protection from discrimination across the board. Ranging widely across various different language versions of the Directive and associated texts, the Supreme Court could find no evidence that there had ever been an intention to protect volunteers against discrimination, and plenty of evidence to the contrary.
While this result will be a relief to organisations like the CAB, it is important to emphasise that it rests on the decision by the employment tribunal that the claimant’s “volunteer agreement” was not legally binding. It is possible to envisage cases where a “volunteer” is able to persuade a tribunal that a binding contract did exist, perhaps because in practice the organisation involved imposed the same kind of obligations on him or her as it would on a paid worker.