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X v Mid Sussex Citizens Advice Bureau and another [2012] All ER (D) 97 (Dec)

The claimant, who had volunteered for the Citizen's Advice Bureau (CAB), sought to bring a claim for disability discrimination. The employment tribunal found that it had no jurisdiction to hear the claim as the claimant fell outside the scope of the protection against discrimination on the grounds of disability intended to be provided under the Disability Discrimination Act 1995( DDA 1995) and Council Directive 2000/78/EC. The Supreme Court dismissed the claimant's appeal on the basis the Directive did not cover voluntary activity.

What issues did this case raise, and why is it important?

The case addressed the issue of whether volunteers are protected under the employment provisions of what was the Disability Discrimination Act 1995(DDA). The principles apply equally to the Equality Act 2010( EqA 2010).

The issue is both current and topical. As Lord Mance stated in his judgment in the case: ‘Volunteers also come in many forms, including the cheerful guide at the London Olympics, the charity shop attendant, the intern hoping to learn and impress.’

The combination of the current economic climate and the coalition’s ‘Big Society’ policy agenda means volunteering is on the increase, and it is therefore more important than ever, both for volunteers and the organisations concerned, to know their respective rights and obligations.

To what extent is the judgment helpful in clarifying whether voluntary work falls within the scope of ‘employment’ for the purposes of the DDA 1995?

The Supreme Court decided the appellant, a volunteer with Mid Sussex CAB, was not protected under the DDA 1995for two reasons.

First, she was not ‘in employment’ with the CAB for the purposes of the DDA 1995, s 68(1). This section specifies that ‘employment’ means: ‘subject to any prescribed provision, employment under a contract of service or of apprenticeship or a contract personally to do any work, and related expressions are to be construed accordingly.’

Quite simply, as there was no contract in this case there could be no employment either. This part of the judgment is not particularly groundbreaking as it in essence reaffirms what was already generally believed to be the case—that the employment provisions of discrimination legislation apply only to employees and workers.

More importantly, as it is obliged to do under the doctrine of direct effect, the Supreme Court then turned to the Equal Treatment Framework Directive 2000/78/EC. Having done so it concluded that art 3(1)(a) of the Directive does not cover voluntary activity. Reviewing the authorities and legislative history the Supreme Court said the definition of ‘access to occupation’ in the Directive cannot be read as covering, and was not intended to cover, voluntary work. The Supreme Court decided this point was sufficiently certain to render a preliminary reference to the ECJ unnecessary.

Does the judgment unequivocally set a limit to the scope and extent of the Directive 2000/78/EC?

The Directive is wide ranging, dealing as it does with the protective characteristics of age, disability, religion/belief and sexual orientation. To that extent, this decision deals with a relatively small point.

On the specific issue of volunteers, Lord Mance considered that matters were sufficiently certain to render a preliminary reference to the ECJ unnecessary. He said there is ‘no scope for reasonable doubt about the conclusion that the Framework Directive does not cover voluntary activity’.

So much for art 3(1)(a). Nevertheless, he then went on to say ‘the interns might well fall within art (3)(1)(b)’.The question was raised but not answered, and so it remains a moot point as to whether:

• interns are covered at all, and

• if interns are covered, which in particular

There is also a lack of clarity as to what ‘internship’ actually means. In 2006 the Department of Trade and Industry as it then was described internship as ‘a limited period of time that an individual spends with an employer during which they have an opportunity to learn directly about working life and the working environment’.

Do you envisage this case having ramifications for voluntary workers and those organisations using their services?

For voluntary organisations the decision will be a relief. For volunteers it will, no doubt, be a disappointment. The catch-22 situation which might conceivably ensue is that while organisations become more willing to engage volunteers, the individuals themselves become more reticent because of the absence of protection against discrimination.

What are the implications for lawyers, and what should they bear in mind when advising clients in this area?

For organisations the focus will be on reducing the risk of creating a legally binding contract with volunteers through, eg avoiding payments (except perhaps expenses), avoiding mutuality of obligation, control and personal service.

Are there still any unresolved issues regarding the balance of voluntary ‘employment’?

Yes, principally two. I have mentioned the first already, namely the question as to whether or not interns are covered by art 3(1)(b). Particularly within the legal profession, where competition for training contracts leads individuals to put themselves forward for internship, this is an important issue. The second issue is the extent to which volunteers are protected by the goods and services provisions of the EqA 2010(if at all) remains unclear. The issue was raised by the Solicitor General during the passage of the EqA 2010and remains unresolved. Given the decision in this case it may well take on added importance.

Interviewed by Kate Beaumont.

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