Legal & Regulatory
Volunteers not covered by anti discrimination legislation
In the April 2011 edition of Charities Direct Magazine, I reported that, in X –v- Mid Sussex Citizens Advice Bureau, the Court of Appeal held that volunteers were not protected by anti discrimination legislation. Well, that case was subsequently referred to the UK Supreme Court which last week confirmed the position, once and for all
The facts may already be familiar to you but by way of a quick recital X, who for the purposes of the case was assumed to be disabled, applied to be a volunteer with the Mid Sussex Citizens Advice Bureau for four to five hours per week. She was given a volunteer agreement which was described as being ‘binding in honour only … and not a contract of employment or legally binding’.
She was told that she was under no obligation to attend work but that it was anticipated that there would be a level of trust and a hope that the expectations reflected in the agreement would be honoured. She undertook a nine-month training period. Thereafter, as a voluntary advisor, she carried out a wide range of advice work duties. No formal attendance records were kept but X frequently did not attend on the days she was expected. No objection was ever taken to this. X was then asked to cease to attend as a volunteer.
X argued that the reason she was asked to cease volunteering was connected with her disability and brought claims under what was then the Disability Discrimination Act 1995 (“the 1995 Act”) and the European Equal Treatment Framework Directive (2000/78/EC) (“the Framework Directive”). The CAB argued that neither the 1995 Act nor the Framework Directive protected volunteers from discrimination during the course of voluntary work and that X’s claim must therefore fail.
The Court of Appeal’s findings
The Court of Appeal agreed with the CAB. Neither the 1995 Act nor the Framework Directive had ever been intended to protect volunteers in the course of their work. If the 1995 Act had been intended to protect volunteers in the course of their work then it would have expressly said so, which it did not. Further, it was notable that a proposal from the European Parliament that the Framework Directive should be amended to include protection for ‘unpaid and voluntary work’ had been rejected by the European Council at the drafting stage. Accordingly, the court dismissed X’s claim.
X appealed to the Supreme Court. Her appeal was supported by the Equality and Human Rights Commission. The CAB was also supported by a number of interested parties, including the Association of Chief Executives of Voluntary Organisations and Volunteering England, on the basis that a finding in X’s favour "would undermine the nature of volunteering, create practical barriers and additional costs for charities and other organisations in which volunteering occurs".
The Supreme Court’s findings
The Supreme Court agreed with the Court of Appeal that volunteers are not protected by discrimination legislation in the course of their work. In order to be so protected volunteers would need to be “workers” in law, which would require them to show that they had a contract with the organisation that engaged them. Although not impossible, it would be highly unlikely for the courts to find that a contract existed in the absence of any remuneration.
The court recognised that there were circumstances in which people working for no remuneration might be protected by the discrimination legislation. However those were the circumstances expressly recognised by the legislation, such as where people were undertaking vocational training or work experience for a limited period (interns, for example) or were working in a pool of volunteers from which paid employees would eventually be selected. Outside of those limited circumstances, no protection was available.
Advice for employers
Long-standing advice on how to ensure that volunteers do not acquire employment protection is unchanged by this decision. The key is to avoid creating any arrangement that could be said to amount to a contract with the volunteer, i.e. a state of affairs where both parties have obligations towards the other. In particular:
1) avoid any suggestion of remuneration by only reimbursing volunteers for out of pocket expenses;
2) only provide training where necessary and relevant;
3) consider a volunteer’s agreement which expressly states that it is ‘not legally binding’ or words to that effect;
4) don’t fix minimum working hours or notice periods;
5) don’t apply HR policies and procedures to the volunteers; and
6) don’t discipline volunteers.
While taking such steps will help, ultimately whether a volunteer has acquired worker or employee status is a matter of law and subject to analysis on a case by case basis. If in doubt seek professional legal advice.
Finally, in similar fashion to how I concluded my original article on this case, I will close by saying that, whilst the case of X confirms that volunteers do not benefit from discrimination protection, it is always better to avoid practices that could be seen as unfair or discriminatory. Not only is this important from a reputational perspective but any organisation which dealt with volunteers unfairly would be unlikely to retain its volunteers for very long.
The full text of the Supreme Court’s Judgment is available here.
An interesting piece on whether volunteers might be able to bring discrimination claims by other means is available by clicking here.
Laurence O’Neill is an Employment Solicitor who writes regularly for Charities Direct as well as a number of other leading employment and HR publications. He has a particular interest in advising employers in the the Third Sector. You can follow Laurence on LinkedIn at http://www.linkedin.com/pub/laurence-o-neill/12/597/28