X v Mid Sussex Citizens Advice Bureau and another UKEAT/0220/08, 30 October 2009
Facts
The claimant (X), who was disabled, applied to be a volunteer with the Mid Sussex Citizens Advice Bureau (CAB) working four to five hours per week. She signed a volunteer agreement described as being “binding in honour only… and not a contract of employment or legally binding”.
Despite providing a range of advice work for the CAB, 25-30% of the time, X did not attend the bureau when expected to do so. The bureau did not object to this or to X changing the days on which she volunteered.
Volunteering was not a prerequisite for paid employment with the CAB, and it was not guaranteed that volunteering would lead to paid employment (in fact volunteers were not given preferential treatment in applying for paid jobs with the bureau, and all paid posts were advertised externally). X was asked to stop volunteering at the CAB and, as a result, she brought a claim for disability discrimination under the Disability Discrimination Act 1995 (DDA). The first hearing was at the Employment Tribunal.
X argued that section 68 of the Disability Discrimination Act (DDA) should be interpreted widely to cover her by deeming her to have been “in employment”, thus giving her protection under the existing DDA. But the tribunal found that X was a volunteer, that there was no legally binding contract between her and the CAB, and that there was no obligation on the claimant to provide services.
As such, in the absence of a contract the tribunal decided, by way of preliminary issue, that as the claimant was not “in employment” for the purposes of the DDA, it did not have jurisdiction to consider X’s claim. She then appealed to the Employment Appeal Tribunal (EAT), where she argued that the Equal Treatment Framework Directive (the directive) had not been properly implemented by the UK government, and that as such her volunteering arrangement with the CAB did in fact fall within the ambit of the directive. On this basis, sections 4(2) and 68 of the DDA did not comply with European law, and consequently they should be re-defined to allow X to bring a disability discrimination claim under (a redefined) section 4(2).
Decision
The EAT decided that the Employment Tribunal was correct to find that the claimant was not entitled to claim disability discrimination under the DDA. In addition, the EAT did not agree either that the government had not complied with the directive, or that sections 4(2)(d) and 68 of the DDA needed to be rewritten to extend protection to voluntary workers without a contract.
Mr Justice Burton could find no express reference anywhere in the directive regarding extension of protection to unpaid voluntary workers. Therefore he declined to refer the matter to the European Court of Justice, because he felt that the answer was “entirely clear”.
Implications
The EAT has followed existing case law and confirmed that volunteers without a contract are not entitled to protection under current discrimination legislation. However, the EAT was clear that its decision in this case was not intended to cover all voluntary workers. Volunteers engaged under contracts are entitled to protection under discrimination legislation. As such, organisations that use volunteers should review their existing arrangements and consider whether contracts are used and, if so, whether that practice will continue, and what exposure they may already have for discrimination claims. If any such exposure exists then they should take steps to minimise any liability by introducing or tightening internal procedures, and most certainly taking care in terminating any volunteer arrangements.
Paul Gaff, partner, Thomas Eggar
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