Employment: Volunteers

"EqA" or "Equality Act" means the Equality Act 2010 (link to legislation.gov.uk)

The "Employment Code"
means the 2011 Equality Act Code of Practice on employment (pdf, link to EHRC website), which came into force on 6th April, 2011. (More on EqA Codes of Practice)

How far are volunteers within the Equality Act?
Does European law extend protection?
UN Convention?
Volunteer Rights Inquiry
More on arguments for change

Note: this page covers the Equality Act 2010 position from 1st October 2010. See also pre-Equality Act position and Which Act applies: Equality Act or DDA?

How far are volunteers within the Equality Act?

The main focus tends to be whether a volunteer falls within the Equality Act employment provisions. Most of the discussion on this page is about that. I also mention though the possibility that the volunteer may be protected as a service user.

Employment provisions

Many volunteers are not protected from disability discrimination by the employment provisions of the Equality Act. Unless European law extends coverage (see below), the main situations where a volunteer does fall within the Act's employment provisions are as follows:

where the person has a legal contract obliging them to work (albeit without pay). If the person does, they may fall within s.83(2) EqA either as an "employee" or as someone who "contracts personally to do work". Newham Citizens Advice Bureau v Murray is an example of a case where the EAT considered that the employment tribunal had too easily found a volunteer not to be within the DDA (as it then was). However, various unsucessful claims indicate that it is difficult to succeed on this argument, eg. SE Sheffield Citizens Advice Bureau v Grayson (link to bailii.org), EAT, 2003;
work experience, subject to exceptions (see Employment services: Work experience) or other situations counting as 'vocational training' within s.56(1) EqA - see also Employment Code para 11.59. So an intern is potentially covered, even if he or she is not an 'employee';
S.39(1)(a) EqA makes it unlawful for an employer to discriminate in the arrangements which it makes for deciding to whom to offer employment. So the Equality Act might perhaps apply if an organisation uses volunteering as a way of assessing an individual's suitability for particular work there. On the facts, this was held not to apply in X v Mid Sussex Citizens Advice Bureau; note this case was based on different wording in the DDA which talked about the 'purpose' of the arrangements;
special constables are included within the police provisions in s.42 and 43 EqA;
public office holders within s.50 - 52 EqA, Employment Code from para 11.35.

Even a paid 'volunteer' is not always covered as an employee under s.83(2) EqA. An example is Breakell v Shropshire Army Cadet Force (link to bailii.org) (2011) where there was no legal obligation to do or to provide work and payment was due only if the person worked (article on outlaw.com. Note this decision has been appealed to the Court of Appeal)

Volunteer as service user?

It is possible that, when a person is taking up a volunteering opportunity with an organisation, this counts as the organisation providing the person with a service. The rules on provision of services could then apply. I am not aware of any cases on this. See EHRC's Guidance for service users: Your rights as a volunteer (link to EHRC website).

Disability Rights Commission guidance

For situations where the Equality Act does not apply to volunteers, the former Disability Rights Commission published guidance in 2007: Recruiting developing and retaining disabled volunteers - Guidance for volunteer opportunity providers (pdf, link to volunteering.org.uk).

Does European Union law extend protection?

It has been suggested that under the European Framework Employment Directive, employment-style protection against discrimination extends beyond the relatively limited categories of volunteers covered by the wording of the Equality Act.

However, so far UK courts have held that the European Directive does not extend protection for volunteers. In X v Mid Sussex Citizens Advice Bureau (January 2011) the claimant argued that the word 'occupation' in the Directive covers part-time unpaid volunteers whose activities are a sufficiently significant or important part of the "employer's" function. The Court of Appeal disagreed, and refused to refer the matter to the European Court of Justice (ECJ). However, this case is under appeal and is to be heard by the Supreme Court in 2012.

A tribunal has referred another case Masih v Awaz FM (link to timesonline.co.uk) to the ECJ, but as at October 2010 this case was on hold. The question of whether the case should be referred to the ECJ was appealed to the EAT.

Role of UN Convention?

The Equality and Human Rights Commission suggests in its 2010 Guide to the UN Convention on Rights of People with Disabilities (link to EHRC website) - see page 16 of pdf version - that the current limitations on coverage of volunteers may be inconsistent with the Convention. More on the UN Convention.

Volunteer Rights Inquiry

Voluntering England is conducting a Volunteer Rights Inquiry (link to volunteering.org.uk). This is a short, focused exploration of the issues and potential solutions around the subject of volunteer rights.

In 2010 the Inquiry has published an interim report, on which it invited views. In light of contributions received, the Inquiry members are further refining their thinking before issuing a final call to action before the end of 2010.

More on arguments for change

The issue of volunteers was considered in the House of Commons Committee on the Equality Bill, where the Government set out why it does not intend to legislate for them (col 440-441, Public Bill Cttee, 23rd June 2009 (link to UK Parliament website)).

In April 2009 the House of Commons Work and Pensions Committee had said it 'strongly' believes that disability discrimination protection should apply to volunteers. "Volunteers currently have less legislative protection against discrimination than someone going into a sweet shop." See paragraphs 134-137 of committee report The Equality Bill: how disability equality fits within a single Equality Act (link to parliament.uk).

See also Opinion Piece from the Guardian: Who will help the volunteers? (link to guardian.co.uk).. .

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Employment: Volunteers

How far are volunteers within the Equality Act?

Employment provisions

Volunteer as service user?

Disability Rights Commission guidance

Does European Union law extend protection?

Role of UN Convention?

Volunteer Rights Inquiry

More on arguments for change

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