X v Mid Sussex Citizens Advice Bureau
The Disability Discrimination Act 1995 (DDA) provided protection to employees who have a contract of employment and workers who have a contract personally to do work, amongst others, but are volunteers working for no pay also protected? The Court of Appeal has said in X v Mid Sussex Citizens Advice Bureau that they are not protected by either the DDA or the EU Framework Directive on Equal Treatment.
Basic facts
When Ms X became a part time volunteer for the CAB in May 2006, she signed a volunteer agreement said to be "binding in honour only … and not a contract of employment or legally binding”.
Although the CAB did not keep attendance records for volunteers, it seemed she frequently did not attend on the days she was expected. The CAB made no objection to any absence, nor did it object if she changed the days she came in.
When she was asked to stop working as a volunteer, she claimed disability discrimination, arguing that the directive provided protection for volunteers and that the DDA should be read as though it provided that protection.
Relevant law
Article 3(1)(a) provides that the directive applies to ”conditions for access to employment, to self-employment or to occupation…”; article 3(1)(b) to access to all types of “vocational training”.
Section 68 of the DDA states that “Employment" means ... employment under a contract of service or of apprenticeship or a contract personally to do any work, and related expressions are to be construed accordingly."
Section 4(1)(a) of the DDA states that it is unlawful to discriminate against a disabled person “in the arrangements” that the employer makes “for the purpose of determining to whom he should offer employment".
Tribunal and EAT decisions
The tribunal said that Ms X was a volunteer as she did not have a legally binding contract with the CAB. As there was no obligation on her to provide services, she was not “in employment” and section 4(1)(a) did not apply.
Ms X appealed, arguing that the volunteer arrangements fell within the scope of the term “occupation” in the framework directive, and that employment in section 68 of the DDA applied to occupation.
The EAT rejected this argument holding that there was no case law suggesting that the term “occupation” in the directive was intended to mean unpaid work, and just applied to the ordinary understanding of paid employment.
Court of Appeal decision
And the Court of Appeal has agreed. It said that although being a volunteer with the CAB could be a stepping stone to “employment” under section 68, that was not enough to bring it within section 4(1)(a).
Most volunteers did not wish to become permanent and all paid positions were advertised externally and were open to everyone. Likewise, it rejected her argument that her voluntary work was a form of vocational training under article 3(1)(b).
As to the scope of the term “occupation”, the Court said that the directive was not intended to cover “all fields of endeavour” and had the intention been to cover voluntary workers, it would have expressly said so. Instead the European Council of Ministers had expressly rejected any amendment to include voluntary workers within the scope of the directive.
Instead it said that the “concept of worker has been restricted to persons who are remunerated for what they do. The concept of occupation is essentially an overlapping one, and I see no reason to suppose that it was intended to cover non-remunerated work”.
Although it accepted the directive should be interpreted broadly, Ms X still fell outside its scope of protection.