18 March 2019 - Article
The Employment Appeal Tribunal has decided in the recent case of X v Mid-Sussex Citizens Advice Bureau that a voluntary worker, who did not have an employment contract, was not entitled to protection under the Disability Discrimination Act.
X volunteered to work for the Citizens Advice Bureau (CAB) for 4-5 hours per week. She entered into a volunteer agreement which was described as; ‘….binding in honour only … and not a contract of employment or legally binding’.
X was under no obligation to provide services to the CAB, and in fact did not turn up to 25% of the advice sessions which she was due to attend (the CAB did not object to this).
The Employment Appeal Tribunal (EAT) confirmed that X was not entitled to protection under the Disability Discrimination Act (DDA) as:
- X had not been ‘in employment’ for the purposes of the DDA (reasoning that there was no legally binding contract between X and the CAB, and that X was not obliged to provide her services to the CAB); and
- X’s volunteering arrangements were not; ‘…for the purposes of determining to whom employment should be offered’ (which would have resulted in those arrangements, and their termination, being subject to the DDA) as volunteering for CAB work did not automatically lead to employment by the CAB; volunteers were not given preferential treatment if they applied for paid work.
It also rejected an argument that European discrimination law does protect volunteers and that UK law does not go as far as it should in this respect.
In considering whether voluntary arrangements are subject to the DDA, the important factor is the purpose of those arrangements. For instance, participation in a pre-employment training programme could well be subject to the DDA if the completion of that training is a necessary step prior to being offered employment with an organisation.
The reasoning of the EAT will apply to all strands of discrimination legislation, not just the DDA. It is also clear that, whilst this volunteer was not protected by the legislation, some volunteers may be. This will largely depend on whether those arrangements are a necessary step to employment (as considered above), or whether their arrangements with the organisation could mean that a relationship has arisen that is covered by the DDA. The definition of ‘employment’ in discrimination legislation is wide, and covers any contract personally to execute work.
A volunteer is unlikely to be treated as an employee where there genuinely is no obligation upon the volunteer to work for the organisation (as in the current case) because no contract can exist in such a case. However, a risk would arise where, for instance, an individual was reprimanded for missing a series of shifts as this might suggest that there was an obligation on the individual to attend.
Organisations engaging volunteers should be careful to ensure that these engagements do not expose them to avoidable risk – one simple step being to avoid in volunteer agreements the use of certain terms or provisions normally associated with employment (e.g. ‘line manager’, or ‘disciplinary procedures’, or an obligation to attend a certain number of sessions). The agreement should not attempt to create obligations, in the manner that an organisation would adopt with an employee, but it is legitimate to set expectations, for instance in relation to the treatment of others in the organisation.
That said, whilst it will help to draft volunteer agreements using appropriate language, it is important to remember that a tribunal, when deciding whether an employment relationship exists, will always prioritise the substance of the relationship over the written form.