20 December 2012
Supreme Court confirms volunteer status
Last year we reported on an important case in which the Court of Appeal reached a decision which ensured that volunteers such as Sunday school teachers, youth leaders and all other volunteers linked to the Christian world would continue to be protected from the consequences of being made subject to equality legislation. This was seen as having an enormous positive implications for the faith sector which relies heavily on volunteer support.
A further ruling has now been handed down by the highest UK legal authority, the Supreme Court.
The apellent 'X' was a volunteer at a Mid Sussex Citizens Advice Bureau who claimed to have suffered unfavourable treatment because of her disability and argued that her volunteer role should be treated as an 'occupation' for the purposes of discrimination law.
Her claim was supported by the Equality and Human Rights Commission (EHRC). However, her argument failed at an original employment tribunal, at the subsequent Employment Appeals Tribunal and then at the Court of Appeal.
In fact, each of these courts held that the appellant, as a volunteer rather than an employee, fell outside the scope of the protections against discrimination on the grounds of disability afforded by the Disability Discrimination Act 1995 and Directive 2000/78/EC ("the Framework Directive").
The appellant appealed to the Supreme Court on the basis that the lower courts erred in interpreting the Directive. She argued that her voluntary activities constituted an "occupation" for the purposes of article 3(1)(a) of the Framework Directive and that the protection against discrimination on the grounds of disability intended to be afforded by the Directive should therefore extend to her. She further contended that the meaning of the Framework Directive was open to reasonable doubt and that a reference should be made to the Court of Justice of the European Union (CJEU) in order to clarify whether the Directive applied to at least some categories of volunteer.
The Supreme Court unanimously dismissed the appeal. They affirmed that since the appellant had no contract, she did not on the face of it benefit by the domestic protection afforded by the Disability Discrimination Act 1995. Whether she could have any claim therefore depended upon whether it was the intention of article 3(1)(a) of the Framework Directive that there should be wider protection, covering volunteers in her position. It was the Court's unanimous view that was not its intention, that this was not open to reasonable doubt and that therefore there was no need for a reference to the CJEU for a preliminary ruling.
It was clear from the legislative history that it was not intended that article 3(1)(a) should encompass voluntary work. No reference was made to voluntary work in the European Commission's original proposal or in the annexed impact assessment; and a proposed amendment emanating from the European Parliament which would have extended article 3(1)(a) to include "unpaid or voluntary work" was never accepted by the Council.
Subsequent to the passage of the Directive the European Commission has continued to review its implementation by Member States without it ever being suggested that the apparent absence in the UK or any other Member State of general protection in respect of volunteers amounts to a failure to properly implement the Directive.
There is therefore no scope for reasonable doubt about the conclusion that the Directive does not cover voluntary activity. Recommendations by the French equivalent of the EHRC indicating otherwise were deemed to carry no greater weight in the construction of the Directive than the EHRC's own submissions before the Supreme Court in this case.
Since article 3(1)(a) does not extend to voluntary activities of the sort undertaken by the appellant, it was held unnecessary to consider the issues of EU law which would have arisen from a contrary conclusion, particularly from principles enunciated in case law cited by the appellant.
Despite the helpful ruling, this case nevertheless serves as a warning to some charities that may find that their relationship with their volunteers could unwittingly create a contractual relationship which could be protected by discrimination law. This can also give rise to an obligation to pay the National Minimum Wage. It is crucial to consider a range of key issues when looking at volunteer status and obtaining good legal advice is advisable.