The Supreme Court handed down judgment in the case of X v Mid-Sussex Citizens Advice Bureau & Another on 12th December 2012 [2012] UKSC 59, holding that volunteers were not protected by the unlawful acts addressing disability discrimination in the sphere of employment.  I posted a preview of this case on this blog on 9th February 2012.  In that blog I drew attention to the difficulties that might arise if volunteers were not included within the scope of (what was then) the Disability Discrimination Act 1995 (DDA).  According to the Supreme Court, however, on a faithful construction of the DDA, read with EU law, protection was not afforded to volunteers.

The case of X concerned a claimant who worked for the Citizens Advice Bureau as a volunteer.  The agreement between her and the Citizens Advice Bureau was labelled a “volunteer agreement” and was described as being “binding in honour only … and not a contract of employment or legally binding”.  When she was asked by the Citizens Advice Bureau to cease being a volunteer she commenced proceedings in the Employment Tribunal alleging disability discrimination.

The first question for the Employment Tribunal was whether a volunteer could constitute an “employee” for the purposes of the wider definition given to the concept of employment in the anti-discrimination enactments (seen now in s83, Equality Act 2010). Ms X’s claim was rejected on the basis that no contractual relationship existed between her and the Citizens Advice Bureau and accordingly no employment relationship existed.  The Employment Appeal Tribunal and then the Court of Appeal rejected Ms X’s appeals.

By the time the appeal reached the Supreme Court the single most important argument (and indeed the argument on which the appeal turned) was whether the Framework Directive 2000/78/EC, requiring Member States to prohibit discrimination in relation to “conditions for access to employment, to self-employment or occupation, compelled a broader meaning to be given to the concept of “employment” in the DDA so as to embrace volunteers.  After a lengthy review of the equality Directives and their history, including various of the Directives in draft form and Commission reports, the Supreme Court concluded that the Directives did not impose any obligation on Member States to outlaw discrimination as against volunteers.

Amongst many instructive materials adduced for and against the arguments made in the EU law, was that of a report from the European Parliament during the consultation process which preceded the making of the Framework Directive. The report proposed amendments to draft Article 3(1)(a) so as to read “(a) conditions for access to employment, unpaid and voluntary work, official duties, self-employment and occupation …”  (emphasis added).  The justification for this, according to the European Parliament, was that “official duties, unpaid and voluntary work should likewise fall within the scope of this directive.  It would not be right for official (i.e. public) duties to become a separate field of application: they should be covered by the definition of the term ‘employment’ (A5-0264/final, page 20).”

The Commission adopted the European Parliament’s proposals (albeit in a slightly modified form).  However, the Council “notably” did not accept the addition to cover “unpaid or voluntary work” (para 41).  This self-evidently and strongly pointed against a construction of the Directive that would have covered volunteers. The rather bold submission of the Equality and Human Rights Commission was that the reference to volunteers was excluded from the final Directive “because that addition was a mere unnecessary ‘clarification’” (para 41).  The Supreme Court rejected that argument.  The Court was also influenced by the difficulty in characterising those voluntary activities which would be covered by the Framework Directive (if that be so) and those which would not, the parties having agreed that not all voluntary activity would be covered.

The Appellant and the Equality and Human Rights Commission suggested a “multi-factorial test” but according to the Court that would lead to uncertainty and disputes, the term “occupation” in the Directive not being itself adequate to distinguish between voluntary activities within and without scope.  According to the Supreme Court, the concept of “occupation” meant that which the Supreme Court identified in Hashwani v Jivraj [2011] UKSC 40, namely “the expression ‘access … to self-employment or to occupation’ means what it says and is concerned with preventing discrimination from qualifying or setting up as a solicitor, plumber, greengrocer or arbitrator”. In essence the expression “access to occupation” is directed at access to a sector of the market and does not envisage voluntary activity. As to the broader question whether volunteers should be covered, there are respectable arguments both ways.  There must be concerns, however, about the impact of this decision on those who rely on volunteering to enhance life skills, improve their opportunities for employment in the labour market generally (particularly at a time where employment opportunities are reducing) or for personal pleasure.

In any event, the Supreme Court’s decision was unanimous (with, helpfully, only one judgment delivered by Lord Mance with whom their other Lordships and Ladyship agreed) and it was a fairly resounding rejection of the arguments put forward by the Appellant and the Equality and Human Rights Commission.  The Court, unsurprisingly, concluded that a reference to the Court of Justice was neither required nor appropriate to address the arguments made in EU law (para 57).

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