Supreme Court decision: Volunteers not covered by discrimination law
The Supreme Court confirmed its decision in the case of X v Mid Sussex Citizens Advice Bureau and others that a volunteer who was working without a contract was not protected by the UK’s discrimination laws. The Supreme Court declined to refer the case to the Court of Justice of the EU as there was no scope for reasonable doubt in the interpretation of the EU Directive from which the UK law is derived.
The case concerned the scope of the Disability Discrimination Act 1995 (the “DDA”), which is now repealed and its provisions are more or less contained in the Equality Act 2010 (the “Act”).
Under the DDA and now the Act
• An employer must not discriminate against a disabled person “in the arrangements which he makes for the purpose of determining to whom he should offer employment” ;
• An employer must not discriminate against a disabled person “whom he employs”, by dismissing him or subjecting him to any other detriment.
• A work placement provider must not discriminate against a disabled person undertaking a work placement, by terminating the placement or subjecting them to any other detriment in relation to the placement.
The Appellant (X) became an unpaid volunteer adviser at Mid Sussex Citizens Advice Bureau (the “CAB”) from 12 May 2006. During her interview it was explained that there would be no contract between her and the CAB. She signed a volunteer agreement which stated “This agreement is binding in honour only and is not a contract of employment or legally binding”. For the purpose of the proceedings X accepted that she did not have a legally binding contract.
X worked 1 – 3 days a week as a voluntary adviser and was given considerable autonomy in her welfare advice work. She did not always attend every week because of health problems and sometimes changed her days. The CAB did not seek to control her hours or discuss her reliability.
In May 2007, the CAB asked X to cease her volunteer work. X alleged that this amounted to disability discrimination, which the CAB denied. X sought to bring a claim in the Employment Tribunal (ET) but the CAB contended that X was unable to bring a claim on the basis that as a volunteer she was outside the scope of the DDA and the ET did not have jurisdiction to hear the claim.
The ET found in the CAB’s favour. X appealed ultimately to the Supreme Court. X was supported by the Equality and Human Rights Commission. The CAB was supported by the Secretary of State for Culture, Media and Sport and the Christian Institute.
The Supreme Court upheld the decision’s of the Court of Appeal, EAT and ET, that the ET had no jurisdiction (was unable) to hear X’s case as she was not protected under the discrimination legislation. It was the ability of X to bring the claim which was being considered, not whether or not X was discriminated against.
Specifically, the Supreme Court agreed with the Court of Appeal that X did not have protection under the DDA because she did not have a contract with the CAB. Although the definition of “employment” is wide enough in discrimination legislation to include “workers” and “office holders”, as a volunteer X did not fit within either of these categories.
Of interest to the Supreme Court was the fact that a proposal for the European legislation to include volunteers had been rejected during the drafting stage. The Supreme Court was clear that if the intention had been to include volunteers, like X, then this would have been made clear in the drafting.
The decision will be welcome news to charities, other voluntary sector organisations and NHS Trusts concerned about the implications of statutory discrimination rights for volunteers.
However, the Supreme Court did make clear that some volunteers may have protection against discrimination, the key requirement being whether they have a contract and fall within the statutory definition of a “worker”.
We recommend that organisations, which engage volunteers, review the terms of their volunteer arrangements so as to ensure there is no misunderstanding about the scope of the arrangement and whether or not a contract is in place.