Ms X was an unpaid volunteer at Mid Sussex CAB and gave advice on welfare law. She was given a volunteer agreement which she signed on 12 May 2006 and which was described as being “binding in honour only … and not a contract of employment or legally binding”. Although volunteers often go on to become employed by the CAB as paid advisers, this is not automatic; there is an open, external recruitment process for paid posts and volunteering arrangements were not for the purpose of determining to whom employment should be offered. Ms X alleged that she was told that her services were no longer required when she made the Bureau aware that she was HIV positive. She claimed disability discrimination.
Broadly speaking, UK law employment law protects employees from discrimination on such grounds as disability, age, religion, marital status or sexual orientation – but it does not provide volunteers with protection from discrimination precisely because they are volunteers, not employees. As a preliminary issue, therefore, an Employment Tribunal held that Ms X was not within the scope of the Disability Discrimination Act’s definition of “employment” because the definition did not cover voluntary work.
“… a proposal which emanated from the European Parliament which in terms suggested that the Framework Directive should be amended to include ‘unpaid and voluntary work’ in addition to the concept of ‘occupation’. The European Commission accepted that amendment and put it into the draft which went before the Council of Ministers for adoption” (per Elias LJ at paragraph 57).
The Court of Appeal rejected the point and concluded that the Directive was not intended to apply to volunteers, primarily on two grounds:
- that it was “far from obvious that it would be thought desirable to include volunteers within the scope of the discrimination legislation relating to employment” and when the matter was specifically addressed by the European Commission and a proposed amendment was introduced to that effect, the European Council chose not to introduce it; and
- that it is inconceivable that the draftsman of the Directive would not have dealt specifically with the position of volunteers if the intention had been to include them (per Elias LJ at paragraphs 59–61).
Crucially, however, as Elias LJ pointed out at paragraph 2:
“Although this case is about disability, it is common ground that if the appellant is protected as she claims, then she and other similarly placed volunteers would also be protected from discrimination on the other grounds identified in the Framework Directive (Directive 2000/78/EEC), and on the grounds identified in the related sex and race directives (Council Directives 2006/54/EC and 2000/43/EC respectively). Between them these directives cover, in addition to discrimination on grounds of disability, discrimination on grounds of racial or ethnic origin, sex, sexual orientation, religion and belief, or age”.
In short, if the Supreme Court decides that Ms X has the same rights not to be discriminated against as if she were an employee, it would be the beginning of employment rights for volunteers.
The Equality and Human Rights Commission has intervened in the case, as it did in the Court of Appeal, arguing that volunteers are protected against discrimination. John Wadham, General Counsel at the Commission is quoted as follows:
“As the Government seeks to increase volunteering in the UK, both to support its ‘Big Society” initiative and as a way of supporting economic recovery by helping people find work, it is only fair that in return, some volunteers should receive protection against unjustified discrimination. This is especially important for many disabled or older people for whom volunteering may play an essential part in helping them live independently and be included in their local community”.
The Commission’s Press Release goes on to state that:
“The Commission’s submissions are that the words ‘occupation and/or conditions for access to……occupation’ within Article 3 of the Directive provides protection for those carrying out unpaid work such as volunteers. However the Commission also recognises that, given the diverse nature of voluntary work, not all forms of voluntary activity will fall within these provisions. Furthermore, the Commission is not arguing that volunteers are employees and therefore have the benefit of the rights and protections afforded by wider employment law”.
Comment: Whichever way it is decided, the result of Mid Sussex CAB is going to be immensely important for the charity sector, religious charities included. Moreover, once a case gets as far as the Supreme Court it is impossible to predict the outcome.
So if the SC decides that volunteers do have employment rights, what next? For the EHRC to say that it “recognises that … not all forms of voluntary activity will fall within these provisions” is ever so slightly disingenuous, given that it will be all but impossible for a charity to tell whether its own particular form of voluntary activity is caught by the Directive or not – until it is hauled before an Employment Tribunal.
Equally, though the the Commission may be not arguing that “volunteers are employees and therefore have the benefit of the rights and protections afforded by wider employment law”, conceding that they have rights under that particular Directive is the first step towards wider employment rights – whether one likes it or not. Nor do arguments from supposed “fairness” convince: “fair” to whom? “Fair” to the aggrieved volunteer? “Fair” to the trustees of a small charity that suddenly find themselves saddled with a raft of new responsibilities?
Religious groups are heavily dependent on volunteers: administration, trusteeship, singing in the choir, keeping the buildings safe and secure, to name but a few areas of voluntary effort. If the judgment of the Court of Appeal is overturned, every faith-group in the country will have to look again at its policy in relation to volunteers – and some of them may be in for one or two nasty surprises.
The judgment is likely to be handed down early in the New Year and we shall post an update then – unless, of course, the SC decides to remit the issue to the Court of Justice of the EU for an Opinion.