07 January 2013

Volunteers and discrimination: X v Mid Sussex Citizens Advice Bureau

In a decision that will come as a huge relief to charities, the Supreme Court unanimously upheld the decision of the Court of Appeal that an unpaid volunteer was not covered by the Disability Discrimination Act 1995 (the ‘Act’) or the EU Equal Treatment Framework Directive (the ‘Directive’).

The Appellant, X, had signed a written volunteer’s agreement with the Citizens Advice Bureau but was asked to stop volunteering after repeatedly failing to arrive at work. X alleged that she had been asked to stop volunteering as a result of her disability and brought a discrimination claim.

The Employment Tribunal, Employment Appeal Tribunal and the Court of Appeal all held that X was not an employee within the meaning of the Act and was outside of its scope. The Court of Appeal took the view that the Directive was not intended to cover volunteers and that UK legislation was consistent with the Directive’s purpose, which was to protect those in paid work. The Supreme Court agreed that the Directive could not be read so as to cover volunteers and nothing in the legislative process leading to the adoption of the Directive suggested that it had been the intention to cover unpaid workers – indeed that idea had been considered and rejected at the time.

The five Supreme Court judges also ruled that there was no scope for reasonable doubt about the conclusion so there was no justification for making a reference to the European Court of Justice.

As the decision applies generally to the definition of employment under the Equality Act 2010, the judgment effectively eliminates the possibility of volunteers seeking protection under the Act in their capacity as volunteers, regardless of the protected characteristics on which they are relying. In other words, although this case involved disability discrimination the outcome would be the same in any case involving allegations of discrimination because of sex, race, age, sexual orientation or religion.

Category: Article