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X v Mid Sussex Citizens Advice Bureau

Court of Appeal, January 2011

The Court of Appeal considered that an unpaid volunteer, who did not have a contract, was not protected by the EU Framework Employment Directive as having an 'employment' or 'occupation'. Since she did not otherwise fall within the DDA, she was not protected against disability discrimination. This decision has been appealed and is due to be heard by the Supreme Court in 2012. It may be referred to the Court of Justice of the European Union.

The claimant was a specialist adviser for welfare rights at the Citizens Advice Bureau, as a part-time unpaid volunteer. She was asked to cease to attend as a volunteer, in circumstances that she claimed gave rise to a DDA claim. The Employment Tribunal held that she did not have a legally binding contract, nor a 'work placement' as defined in the DDA. Accordingly the DDA did not apply to her.

A 'work placement' was defined in s.14C(4) DDA as "practical work experience undertaken for a limited period for the purpose of a person's vocational training". The employment tribunal judge concluded that the experience was not for a limited period, and also that training was not the dominant or sole purpose of the arrangement. Receiving training was a by-product - the purpose of the arrangement was for her to give advice as a volunteer.

In a second decision, the employment tribunal also ruled that Bureau's arrangements for volunteer workers were not "for the purpose of determining to whom [it] should offer employment." Had that been the purpose, the volunteering could have come within s.4(1)(a) DDA. However, the employment tribunal said that the volunteering arrangements were not for the purpose of of determining to whom employment should be offered. Again, that was a by-product rather a purpose. The engaging of volunteers was to provide volunteer advice and other work to support CAB's aims.

The claimant appealed to the Employment Appeal Tribunal (EAT), principally on the ground that her volunteer role was an 'occupation' within the European Framework Employment Directive, and should therefore be covered by the DDA. She argued that volunteer activities fell within the Directive if they were a sufficiently significant or important part of the Bureau's function so as to be not merely 'marginal', such as the following of a hobby, or occasional provision of assistance. She also repeated her argument that s.4(1)(a) DDA applied because the volunteering arrangements were for the purpose of determining to whom to offer employment. The appeal to the EAT failed.

She appealed to the Court of Appeal, on the same two grounds. The Equality and Human Rights Commission (EHRC) supported her appeal, adding some further arguments.

Held by Court of Appeal: the Framework Employment Directive does not extend the protection of volunteering beyond that already given by the DDA, either as 'employment' or 'occupation' within the Directive. The Court of Appeal considered that there was not sufficient doubt on the issue to refer it to the European Court of Justice.

The Court of Appeal also rejected the argument that the Bureau made its arrangements for volunteer workers "for the purpose of determining to whom [it] should offer employment" within DDA s.4(1)(a). The purpose here was to secure advisors to provide advice to clients, not to create a potential pool from which full time staff could be drawn.

The EHRC argued that the post was a form of vocational training, and the claimant had been denied access to it in breach of Article 3(1)(d) of the Directive. The Court of Appeal rejected this. The purpose of the Bureau appointing volunteer workers was not to provide training. Also the volunteers were not being trained in any sensible meaning of the term - they were providing services for third parties in the same way as full time staff. A middle manager is building up experience which will help him become a senior manager, but it would be an abuse of language to describe him as undergoing vocational training.

If the court had considered volunteers to fall within the Directive, it considered there would have been a strong argument that the case of Kücükdeveci would permit the Directive to be directly enforced against the Citizens Advice Bureau, even though it was a private party rather than a state. The Court of Appeal was not attracted to an argument by the Secretary of State that whereas protection from age discrimination may be a fundamental EU right, protection from disability discrimination would not be. In any event the Court of Appeal would have referred to the European Court the question of whether the principle of Kücükdeveci would apply here, if it had it been necessary to refer the issue of whether volunteers fell within the Directive.

Full Court of Appeal decision: www.bailii.org/ew/cases/EWCA/Civ/2011/28.html

Comment

Apart from any European law argument, volunteers fall within the employment provisions of the Equality Act/DDA only in fairly limited situations: mainly where they have a legal contract, or it is 'work experience (or in the case of the DDA a 'work placement' as defined), or if the volunteering is part of arrangements to decide who to employ. (More detail on volunteers under Equality Act 2010...).

The decision is being appealed to the Supreme Court, and is due to be heard in 2012. John Wadham, the Equality and Human Rights Commission's legal group director, is quoted in a Guardian article as saying that the ruling was unfair:

"Given that many employees begin their working life as volunteers, which provides them with valuable experience which they can use as a step up to paid employment, it seems unfair that certain groups of people can legally be denied this experience. If this case does go to the supreme court, the commission will hope to have our views heard."

The UK Government has consistently resisted calls to bring volunteers generally within the scope of the Equality Act.

On the employment tribunal's consideration of the term 'work placement', note that the position is different under Equality Act 2010. EqA S.56(6)(b) says that vocational training within the Act includes "work experience (including work experience the duration of which is not agreed until after it begins)". So it is not clear that the work experience needs to be for a "limited period", and it is at least not an express requirement within the definition that the experience must be "for the purpose of a person's vocational training". (More on work experience...)

European Union: Framework Employment Directive
Employment: Volunteers

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Last updated 22nd December, 2011