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Ruling finds against disabled volunteer

11 January 2013

A VOLUNTARY worker who has no contract of employment is outside the protection against discrimination intended by the Disability Discrimination Act 1995, and the Directive of the European Union which establishes a general framework for equal treatment in employment and occupation, the Supreme Court unanimously ruled.

The claimant, who was identified only as X, had both academic and practical qualifications in law. From May 2006, she became a volunteer adviser for the Mid Sussex Citizens Advice Bureau (CAB) after an interview when she was told that there would be no binding legal contract between her and the CAB. The claimant confirmed that, by signing a volunteer agreement which stated that the agreement was "binding in honour only, and is not a contract of employment or legally binding".

The agreement also stated that it was "hoped" that X could give at least one-and-a-half days during basic training, which could last up to nine months, after which the CAB would offer her at least 94 duty sessions per year, each session usually being three and a half hours.

She completed her training period by November 2006, and thereafter, as a voluntary adviser, she carried out a wide range of advisory duties. Those included writing appeal submissions and case notes, undertaking specialist research, writing letters to third parties, and giving legal advice to CAB clients.

She indicated her availability to volunteer on Tuesdays, Thursdays, and Fridays, but, because of health problems, she did not always attend sessions, and sometimes changed days. She was absent 25-30 per cent of the proposed times, and, in practice, attended between one and three days a week. The CAB took no objection to that, nor sought to control her hours or discuss her reliability.

X claimed that, in May 2007, she was asked to cease to act as a volunteer in circumstances amounting to discrimination against her on grounds of disability. The CAB denied the claim of discrimination, but there was no adjudication on it because the Employment Tribunal decided that it had no jurisdiction to hear X's case, since she was a volunteer and therefore outside the statutory protection afforded by the law.

The Employment Appeal Tribunal and the Court of Appeal agreed with that decision.

She appealed to the Supreme Court, and argued that her voluntary activities constituted an "occupation" for the purposes of article 3(1)(a) of the EU's Framework Directive 2000/78/EC; so that the protection against discrimination on the grounds of disability under the Directive should extend to her. Her appeal was supported by the Equality and Human Rights Commission, which appeared as an intervener.

The CAB, which resisted the appeal, was supported by the Secretary of State for Culture, Media and Sport, and by the Christian Institute, who appeared as interveners in the Supreme Court. In addition, other organisations associated with volunteering wrote to the CAB's solicitors in support of its case.

Those other organisations, namely, the Association of Chief Executives of Voluntary Organisations, Groundwork UK, and Volunteering England, said that if X's appeal was successful it would undermine the nature of volunteering, create practical barriers and additional costs for charities and other organisations in which volunteering occurred, and result in a formalisation they believed was unwanted by most volunteers.

Lord Mance, who delivered the unanimous decision of five Justices of the Supreme Court, said that since X did not have a contract of employment she did not fall within the scope of the Disability Discrimination Act. Nor did she fall within the Framework Directive, because it did not cover voluntary activity.

There was "no scope for reasonable doubt that the Framework Directive does not cover voluntary activity", Lord Mance said, and therefore this was not a case where it was either required or appropriate that a reference should be made to the European Court of Justice.

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