Labour & European Law Review Weekly Issue 312 28 March 2013
The Disability Discrimination Act 1995 (now the Equality Act 2010) and the EU Framework Directive on Equal Treatment provide protection for employees and workers against disability discrimination, but is this protection also afforded to volunteers? The Supreme Court in X v Mid Sussex Citizens Advice Bureau says not.
When Ms X, who was disabled, 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”.
When she was asked to stop working as a volunteer (because she often did not turn up), she claimed disability discrimination, arguing that the Framework Directive provided protection for volunteers and that the Disability Discrimination Act (DDA) should be read as though it provided that protection.
Decisions of lower courts
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 did not come within the provisions of the DDA.
Ms X appealed, arguing that the volunteer arrangements fell within the scope of the term “occupation” in the Framework Directive, and that the reference to “employment” in the DDA applied to occupation.
The EAT rejected this argument holding that there was no case law suggesting that the term “occupation” in the Framework Directive was intended to mean unpaid work, and just applied to the ordinary understanding of paid employment.
The Court of Appeal agreed. It said that although being a volunteer with the CAB could be a stepping stone to “employment”, that was not enough to bring Ms X within the provisions of the DDA. As for the scope of the term “occupation”, the Court said that the Framework 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.
Supreme Court decision
The Supreme Court has now agreed, saying Ms X had no protection as she did not have a contract.
In terms of the reference to “access …. to occupation” in the Framework Directive, the Court said this referred to access to a sector of the market and not any particular employment or self-employment. It was used in an “umbrella” sense, covering differences in treatment justified in relation to either employment or self-employment. Once understood in that sense, it would be contradictory to treat “occupation” as operating at the same level as “employment” and “self employment” or as envisaging voluntary activity.
It also pointed to the omission of any reference to voluntary workers in the Framework Directive as “quite striking” and to the fact that the Council of Ministers removed an amendment by the European Parliament referring to “unpaid and voluntary work” during the consultation period. Further, the European Commission had not suggested that the UK had not implemented the Framework Directive properly by failing to include voluntary activity.
The Supreme Court said that the multi-factorial test advocated by Ms X would lead to uncertainty and disputes. And if there had been an intention that the Framework Directive should cover some but not all voluntary activity as she suggested, it would surely have given some indication as to where the line should be drawn.
It concluded that those in remunerated work and volunteers were not in comparable positions, and it would contradict the European Union legislature’s intention to treat the Framework Directive as intending to cover volunteers. As there was no scope for reasonable doubt about its conclusion, the Supreme Court refused to make a reference to the Court of Justice of the European Union.