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Are volunteers protected from discrimination?

Every industry attracts a diverse and vast range of volunteers usually for work experience, knowledge of a specific method, and Government run work schemes. The question which arises is whether volunteers are entitled to the same employment rights as employees?

In April 2009 the House of Commons Work and Pensions Committee said they “strongly” believed that disability discrimination protection should apply to volunteers. However the Supreme Court in X v Mid Sussex Citizen Advice Bureau (CAB) disagreed.

Background

The Claimant, known as X was a volunteer at the Citizens Advice Bureau (CAB) in Mid Sussex. She was disabled and had been diagnosed with HIV.

X signed a volunteer agreement on 12 May 2006. This agreement was described in writing as being ‘binding in honour only and not a contract of employment or legally binding’. After a nine month training period, X began her voluntary work as a legal adviser. On May 21 2007 due to erratic attendance, she was asked to stop attending.

X brought a claim in the Employment Tribunal alleging that she was an employee who had been discriminated against on the grounds of her disability.

The Employment Tribunal (ET) Decision

The ET rejected her claim of being an employee on the basis that the signed agreement between the parties did not amount to being an employment contract and neither was it an arrangement to determine future employment.

Thus X was a volunteer and not an employee, therefore the ET did not have jurisdiction to hear her disability discrimination claim.

X appealed to the Employment Appeal Tribunal (EAT).

The EAT and Court of Appeal decisions

Before the EAT, X argued:

  1. there was an arrangement for determining future employment and
  2. that her voluntary activities constituted as ‘occupation’ for the purposes of Article 3(1) (a) of the Framework Directive (‘the Directive’).

The EAT rejected both arguments, finding the concept of ‘occupation’ in the Directive did not include unpaid work.

The Court of Appeal rejected the argument that the principle of non-discrimination was so important in UK law that the only reasonable inference is for it to apply to volunteers. They upheld the previous decisions citing that if the intention of the Directive had been to include volunteers, it would have been clearer. Further the term ‘occupation’ was concerned with access to a particular sector or the job market rather than a particular job someone seeks or holds.

X appealed to the Supreme Court.

The Supreme Court

The Supreme Court dismissed her appeal.

They held that X did not have a legally binding contract or a work placement as defined in the Disability Discrimination Act 1995 (now the Equality Act 2010) or Article 3(1) (a) of the Framework Directive therefore she could not bring a claim for disability discrimination. 

Conclusion

Despite the decision providing clarification in respect of employment status for volunteers, it also acts as a warning to businesses to ensure that their relationship with volunteers is clearly defined in a contractual agreement.

If you need advice in relation to a discrimination issue please contact a member of our team on 01133 50 40 30 or at hello@scesolicitors.co.uk for a free initial consultation.


Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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