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Last week the Supreme Court heard the claimant’s appeal in X v Mid Sussex Citizens Advice Bureau and another. By this appeal, the claimant challenges the decision of the Court of Appeal (upholding the decisions of the Employment Appeal Tribunal and the Employment Tribunal) that persons undertaking work as volunteers are not protected by the prohibitions on discrimination in the employment sphere, found at the relevant time in the Disability Discrimination 1995 (DDA).

Ms X undertook work for the Citizens Advice Bureau as a volunteer. The agreement between her and the Citizens Advice Bureau was labeled a “volunteer agreement” and described as being “binding in honour only … and not a contract of employment or legally binding”.  At some point, Ms X was asked to cease attending as a volunteer and thereafter brought a claim of disability discrimination. 

The first question for the Employment Tribunal was whether a volunteer could constitute an “employee” for the purposes of the DDA.  A wide concept of employment was found in the DDA. The Equality Act 2010 (EA 2010) (which repeals the DDA in its application to Great Britain) adopts the same meaning as that seen in the DDA, and accordingly the result in X v Mid Sussex Citizens Advice Bureau will be of on going importance.  For the EA 2010, “employment” means “employment under a contract of employment, a contract of apprenticeship or a contract personally to do work” (s83(2)(a)). This reflects provision made in all the anti-discrimination enactments repealed and replaced by the EA 2010, including the DDA.

Ms X’s claim that she was an employee was rejected by the Employment Tribunal on the basis that there was no contractual relationship as between Ms X and the Citizens Advice Bureau and accordingly no employment relationship existed, even within the wide meaning provided for under the DDA (and now the EA 2010).  In so holding, the Employment Tribunal followed case law on the same issue (South East Sheffield Citizens Advice Bureaux v Grayson [2004] ICR 1138; [2004] IRLR 353). This was to the effect that even where some degree of commitment was required of the volunteer, a volunteer would not enjoy the protection of the prohibitions on discrimination by employers.  According to case law, in determining whether an arrangement really is a volunteering arrangement, “at least one test which may help in this identification exercise is to consider whether, if the volunteer should decline without prior notice to perform any work for the employer, the latter would have any legal remedy against him; and similarly to consider whether, if the volunteer attends to do work and there is none, he has any legal remedy against the employer”  (South East Sheffield Citizens Advice Bureaux v Grayson [2004] ICR 1138; [2004] IRLR 353, para 13).  This is perhaps a less than helpful test (and has the ring of unreality about it) since most employees and other workers would not adjudge their relationship in those terms. In any event, the contractual model adopted by, now, the EA 2010 does cause problems for volunteers seeking to challenge discrimination at work.

At the Employment Appeal Tribunal, Ms X relied heavily on the Framework Directive 2000/78/EC which requires Member States to outlaw, inter alia, disability discrimination in the spheres of employment and occupation.  Ms X sought to argue that the concept of occupation was broad and the DDA should be read consistently with the Directive so as give a sufficiently wide meaning to its provisions addressing “employment” as to cover volunteers.  The Employment Appeal Tribunal rejected this submission, as did the Court of Appeal.  According to the Court of Appeal, the concept of occupation was not wide enough to cover volunteers and there was nothing in the history of the Directive pointing to an intention otherwise.

Ms X had also argued that if she was not an “employee” then her claim fell within s4(1)(a), DDA (now s39(1)(a), EA 2010) in that by making the volunteering arrangements, the Citizens Advice Bureau had made arrangements for the purpose of determining who should be offered employment and had discriminated against Ms X in the making of those arrangements. The Tribunal found that volunteers frequently subsequently become employed by the Citizens Advice Bureau as full-time advisors and that being a volunteer provided appropriate experience for a paid advisor’s position. There was evidence, as the Tribunal found, that in some areas about 80% of paid advisors would have been volunteers first.  However, the Tribunal found that volunteers were not automatically recruited to vacant full-time posts or given preferential treatment in applying for paid jobs with the Bureau and as such, the Tribunal found, volunteering could not be said to be an arrangement the purpose of which was to determine to whom to offer employment.  Again, Ms X’s appeal against this ruling failed at both the Employment Appeal Tribunal and the Court of Appeal.

The decisions of the courts on this issue to date have been controversial. The effective exclusion of volunteers from the protections against discrimination at work has proved particularly significant in the context of disability. This is because volunteering has proved an important means of helping disabled people to enter the labour market (Joint Committee on the Draft Disability Discrimination Bill, First Report (May 2004), paras 353–61).  A case can be put for the other side, as Elias LJ observed in the Court of Appeal in X v Mid Sussex Citizens Advice Bureau itself, citing one report recording divergent views as to whether employment rights should be extended to volunteers.  Apparently, some who were consulted saw legislation as an unwelcome fetter on the volunteer and thought it important that volunteering was kept wholly distinct from employment.  Nevertheless, it is difficult to see how an absence of any legal right to challenge discrimination at work because the nature of the relationship is not one formally recognized as constituting “employment” can be justified.   Volunteering can provide important advantages to individuals in developing skills and confidence (and sometimes contacts) that can help in finding employment in the future. It can also provide great pleasure to those wanting to make a contribution to the communities in which they live or to simply engage in activities that would otherwise be unavailable to them. The result in this case will certainly be important for many people including those who for differing reasons value the opportunities provided by voluntary work and who might be surprised to learn that it could be lawfully denied them because of their disability status, gender, race or some other such characteristic.

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