The Court of Appeal has confirmed that volunteers who are unpaid and have no binding legal contract are not covered by the Disability Discrimination Act 1995 or the European Equal Treatment Framework Directive (X v Mid Sussex Citizens Advice Bureau (CAB)).
The Claimant was a volunteer with the CAB. She had signed a volunteer agreement with the CAB, which expressly stated that it was not a contract of employment, or legally binding in any way, being "binding in honour only". When the CAB requested that the Claimant stop volunteering with them, she claimed that the reason was related to her disability and raised a claim for disability discrimination under the Disability Discrimination Act 1995 (DDA).
For an individual to bring a claim under the DDA, the alleged discrimination must relate to (i) an act or series of acts that took place whilst the individual was either an employee or on a "work placement", or (ii) an organisation's alleged discriminatory actions in determining to whom they should offer employment in the first place.
The Court of Appeal held that volunteers are not protected by either the DDA or the Framework Directive. The volunteer's position was not covered by the definition of "employment" because of the lack of a legally binding contract between her and the CAB. Neither was the Claimant's volunteering arrangement a "work placement" in the true sense of the phrase. The primary purpose of the volunteering arrangement was not to provide the Claimant with vocational training, but for the CAB's service users to benefit from volunteers providing free advice. Any training the Claimant received as a result of volunteering was simply a by-product of the volunteering experience.
The Court also rejected an argument that the termination of the volunteering arrangement was an act that related to determining to whom to offer employment. Whilst paid CAB advisors had often had prior volunteering experiences, it was not the case that volunteers were automatically offered paid employment. Again, any experience gained and consequential improvement in an individual's prospects of securing a paid role was merely a side effect of the volunteering arrangements and not the main purpose.
The Framework Directive covers a wider scope of individuals than the DDA, and prohibits discrimination in relation to conditions for access to "employment, self-employment or occupation". The Court of Appeal acknowledged that this definition should be given a "broad and generous interpretation". However, it held that unpaid volunteer work (where there is no binding obligation on either side) did not fall within the scope of "occupation". The Court noted that the EU institutions had discussed the option of specifically including volunteers in the Framework Directive, but that the European Commission had finally rejected this approach. In the Court's view it was still "far from obvious" that it was appropriate for volunteers to be included in the anti-discrimination legislation, and, if they had wished volunteers to be included in the Framework Directive, the drafters of the legislation would have specifically stated that.
Impact on employers
- Although this case was decided under the old DDA, the principles discussed apply to the Equality Act 2010, meaning that volunteers are not covered under the new equality legislation either.
- The case will be of some comfort to charities and organisations that rely on the use of volunteers, and which may have been concerned about the possible administrative and liability implications of a finding that volunteers were covered by discrimination legislation (it is estimated that approximately 1.75 billion volunteer hours were worked in 2007/08 in the UK).
- However, it should be remembered that volunteers come in all shapes and sizes. This case is limited to volunteers without legally binding contracts. Where arrangements for volunteers differ (e.g. where a "volunteer" is in fact obliged to carry out services) an employment tribunal may take a different approach.
- The Equality and Human Rights Commission (EHRC) supported the Claimant in this litigation. It has observed that, given that many people start their careers by undertaking voluntary work to gain work experience, it seems unfair that there is no legal redress against organisations that exclude certain categories of people from gaining such experience. It is understood that the EHRC is considering whether to appeal to the Supreme Court.
- Charities and other organisations that rely on volunteers should review their current practices and documentation in relation to the use of volunteers. Two areas of concern in particular are the termination of volunteer arrangements and the preparation of relevant documentation so that the volunteer is not, perhaps inadvertantly, elevated to the protected status of worker or employee.