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The Final Say? Volunteers And Discrimination Claims

The Final Say? Volunteers And Discrimination Claims

Earlier this week, charities and voluntary organisations received what will surely be welcome news during this age of austerity, falling donation levels and funding cuts.

The news came in the form of the unanimous decision by the Supreme Court in X  v Mid Sussex Citizens Advice Bureau, that volunteers without contracts are not entitled to protection from discrimination under the Equal Treatment Framework Directive (Directive 2000/78/EC).

Cynics might suggest that the decision might please organisations who use volunteers because it might allow them to discriminate freely against the people who are such invaluable resources to them.  However, such a proposition strikes at the very heart of the concept of charity, being the voluntary giving of assistance to those in need.  

Instead, it will allow these organisations to carry on with their organisational objectives safe, for now, in the knowledge that volunteers without contracts cannot make discrimination claims against them.  There will be no immediate need to be concerned about the huge administrative and financial burden that they would have felt had the decision been different.

Turning to the case itself, it concerned volunteer, X, who worked for the Citizens Advice Bureau (“CAB”) for four to five hours per week. 

She helped the CAB by providing them with a wide range of  advice services.  Her volunteer agreement set out that she did not have a contract of employment or legally binding agreement, and there was no obligation placed on her to attend work. 

She claimed that she was forced out of her role at CAB because of a chronic health condition and tried to bring a case for disability discrimination at an Employment Tribunal.  This was rejected by the Employment Tribunal as she did not have the required status to make a claim under the Disability Discrimination Act 1995, now replaced by the Equality Act 2010. 

In order to make a claim she would have to show that she either:

  • had an employment contract or had been obliged to provide services to the CAB;
  • had been volunteering for CAB for the purpose of determining if employment should be offered to her; or  
  • had been undertaking a work placement with CAB.

She appealed to the EAT and subsequently to the Court of Appeal who rejected her later argument that her voluntary activities should be protected from discrimination under the Framework Directive. 

The Supreme Court was challenged with deciding whether X might have a claim under the Framework Directive.  Among the key issues, the Supreme Court, looked at whether it was the intention of the Framework Directive to offer protection to volunteers in X’s position.  They considered the fact that X claimed that the Framework Directive included a reference to protection from discrimination “in relation to access to… occupation.”

After considering the issues in depth, the Supreme Court decided that it was not the intention of the European Commission or European Council to give discrimination protection to volunteers.  They found that “access to… occupation” related to access to a sector of an employment market rather than to a particular post.  X had sought to rely on the fact that it is often the case that volunteers gain full-time employment after initially volunteering with organisations. 

The Supreme Court also rejected X’s request for the case to be referred to the European Court of Justice for clarification.

So, is this the final say on the matter for volunteers and the organisations they assist?

It may be for now, but the question of whether volunteers should be covered by discrimination law has been the subject of much debate over the years.  Indeed, there have been many proposals both at home and in Europe to amend the relevant legislation to protect volunteers.  The proposals have not been made into legislation as yet but may feature again in future debates over the coming years.

The case does not deal with volunteers who have a legally-binding contract to do work personally.  It also does not cover volunteers who are on work experience schemes or vocational training placements.  Accordingly, the judgement should be considered with caution as it does not apply to all categories of volunteer.  Organisations should check their volunteer agreement documentation before deciding whether discrimination law applies in each case.

Nick McLuskey
Trainee Solicitor