An appeal court ruling which denies volunteer workers the anti-discrimination employment protection enjoyed by staff has been described as unfair by the Equality and Human Rights Commission.
In a landmark judgment, the court of appeal ruled against a woman who claimed she had been discriminated against on grounds of disability, after she was told to stop volunteering for Mid-Sussex Citizens Advice.
The woman, named only as “X” by the court, originally lost an employment tribunal hearing against Citizens Advice over the matter in November 2009. Her appeal against the verdict, which included a representation by the EHRC, was based on European equal treatment legislation covering those in “occupation”, a definition the woman argued ought to apply to volunteers. But her case was unanimously rejected by the court of appeal.
The decision means voluntary workers are not protected by the UK’s Disability Discrimination Act 1995 unless there is a contract between the volunteer and the organisation.
But John Wadham, the EHRC’s legal group director, said the ruling was unfair and suggested it might yet be challenged in the supreme court. “We are disappointed that the court of appeal has decided that volunteers do not have legal protection from workplace discrimination,” he said. “If discrimination laws don’t apply to this sector it will be legal for organisations when taking on people to discriminate against groups such as the disabled or ethnic minorities.
“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.”
In reaching the verdict, the appeal judge Lord Justice Elias said: “Volunteers are extensively employed throughout Europe and it is unrealistic to believe they were intended to be covered by concepts of employment and occupation which would not normally embrace them.”
Jason Galbraith-Marten, the barrister representing Citizens Advice, said the verdict would be a great relief to much of the sector, whose operations inevitably depended greatly on voluntary labour.
“The cost of litigation, successful or otherwise, that would be generated from the extension of anti-discrimination rights, would be too great a financial burden for many [voluntary organisations] to bear,” he said.
“The reality is that employers are being told they don’t carry the liability for volunteers. Having said that, I think most organisations would want to protect everyone under their roof. Discrimination is not the sort of behaviour anyone would want to tolerate, be it from an employer or an employee
I appreciate where the EHRC are coming from. Though I’m not entirely sure that their position (that volunteers may be protected as ‘service users’) is entirely coherent either. When the EHRC first produced their guidance, suggesting that volunteers may be protected under the Equality Act as service users, it left a few anomalies. In particular, in how (i) volunteers would not be protected on the grounds of age, and (ii) volunteers would not be protected from third party harassment, under the Equality Act.
I doubt very much that the supreme court will decide that volunteers are effectively workers.