Labour & European Law Review Weekly issue 91 - July 2004 07 July 2004
Until October this year, employers with fewer than 15 employees remain exempt from the provisions of Part ll of the Disability Discrimination Act. In the case of South East Sheffield Citizens Advice Bureau v Grayson (2004, IRLR 353), the employment appeal tribunal (EAT) decided that because the bureau's volunteers did not count as employees, it was exempt from the legislation.
What was the basis of Mrs Grayson's claim?
Mrs Grayson was employed by the bureau from September 2001 to 26 March 2002 as a home visiting and outreach development worker. In June 2002 she claimed that the bureau had discriminated against her contrary to the Disability Discrimination Act.
The bureau disputed her claim, but said that the tribunal had no jurisdiction to hear it because it had less than 15 employees. Mrs Grayson accepted that there were only 11 paid employees, but she claimed that some of the bureau's voluntary advisers and its management committee directors should also be counted as employees.
What did the tribunal decide?
The tribunal decided that the directors were not employed under an employment contract - they had no contract of service nor any contract personally to do any work for the bureau.
As for the advisers, however, the tribunal found that they were employed under a contract of service. It pointed out that there was no clause in the volunteer agreement that said there was no legal relationship between the bureau and the volunteers.
The bureau expected a minimum commitment of six hours per week from the volunteers. In exchange for their time, the bureau provided training, supervision, experience and cover in respect of any liability for negligent advice.
As long as the volunteers provided the advice, they continued to receive those benefits. If the advisers withdrew their services, then the bureau could stop the benefits. The tribunal said there was a contract of service between them.
What did the CAB argue on appeal?
The bureau argued that the tribunal was wrong to have put so much emphasis on the fact that there was no express statement in the volunteer document to the effect that there was no intention to create legal relations between the parties. It pointed out that, while an express statement to that effect may be a relevant factor, the absence of such a statement was not.
Its submission was that, for any alleged contract to be legally binding, the parties should intend to be legally bound by it. As neither the bureau nor the volunteer signs the volunteer agreement, it could not be a document intended to create any legal contract between them.
What did the EAT decide?
The EAT said that to ascertain whether a volunteer worker is an employee, it needed to identify an arrangement under which, in exchange for some consideration (such as training), the volunteer is contractually obliged to render services or work personally for the employer.
The EAT did not think there was such an obligation. First of all, no one was required to sign the 'volunteer agreement'. It said nothing about the amount of holiday the volunteer can take, and did not offer payment for the services of the volunteers, just to reimburse their expenses.
Its purpose was simply to clarify the 'reasonable expectations' of each party (presumably so that the bureau could organise the provision of service by way of a rota). The EAT said such terminology was not the language of contractual obligation.
Although the bureau indemnified volunteers against negligence claims, that did not impose a contractual obligation on a volunteer to do any work for the bureau, nor for the bureau to provide work for the volunteer.
Volunteers could withdraw their services from the bureau at any time, with or without notice, and the bureau would have no contractual remedy against them. As a result, the EAT said that the advisers and other volunteers were not employees.