The People Bulletin

The Court of Appeal has handed down its first decision on the issue of the status of volunteers which considered whether volunteers are protected from acts of discrimination on grounds of disability.[1]

In the case of X v Mid-Sussex CAB, the Court of Appeal, upholding the earlier decision of the Employment Appeal Tribunal [2], confirmed that volunteers are not afforded protection by the Disability Discrimination Act 1995 or by the European Equal Treatment Legislation.   

Equal treatment legislation and volunteers 

The case concerned a volunteer who alleged that she had received less favourable treatment because of her disability. The case was struck out at a preliminary stage by the Employment Tribunal. The tribunal held that the volunteer did not have a contract with the CAB and that therefore she was not protected by the Disability Discrimination Act. The volunteer appealed to the Employment Appeal Tribunal and again to the Court of Appeal. Her argument in both appeals was that volunteers are protected by European equal treatment legislation. The European legislation covers ‘occupation’ which she argued should include volunteering. The volunteer contended that either she could rely directly on the European legislation, or that the UK’s domestic legislation should be interpreted to extend to volunteers. 

The Court of Appeal concluded that it was clear that the European legislation did not include protection for volunteers and that therefore the appellant’s appeal would not be upheld. 

Volunteers and contracts 

It is important to remember that existing domestic legislation would give volunteers legal protection against discrimination if there is a contract between the individual and the organisation. This would include any form of written contract but would also include situations where a contract could be implied by the conduct of the parties.  For example, a contract could be implied if volunteers are paid anything in addition to expenses actually incurred, if volunteers are required to volunteer for a minimum length of time in return for training, or if there is an absolute requirement for the volunteer to work a given number of hours. Volunteers could of course be requested to work certain hours, but it should be clear that there would be no sanction if they failed to do so. Volunteers would also be protected under existing legislation if they were also an applicant for an employed role or if volunteering was a prerequisite for employment. 

The case considered the position under the Disability Discrimination Act 1995. In October 2010 this was replaced by the Equality Act 2010. The Equality Act also refers to those who are afforded protection under the Act as having ‘a contract of employment, a contract of apprenticeship or a contract of service’.  The Equality Act would therefore also not cover volunteers unless there was some form of contract between the volunteer and the organisation.  

Lucy McLynn, an employment law partner at Bates Wells and Braithwaite who acted for the CAB explains: “This is a very important case for the voluntary sector.  If the Court of Appeal had been persuaded by the arguments that volunteers could fall within the protection from discrimination under European law, this would have led to significant new legal liabilities for the many organisations that work with volunteers.  Volunteering is about the donation of time and skills by generous people to good causes, and in my view it is right that this should be treated as something totally different to the contractual bargain (work in exchange for pay) of the employment relationship." 

Note: This story first appeared in the charity sector magazine, Caritas.    

[1] www.bailii.org/ew/cases/EWCA/Civ/2011/28.html 

[2] www.bailii.org/uk/cases/UKEAT/2009/0220_08_3010.html