Green light to discriminate against volunteers?

Are those who work as volunteers able to bring claims for discrimination against the organisations they are volunteering with? We look at the recent judgement in the case of  X v Mid Sussex Citizens Advice Bureau and others [2011] EWCA CIV 28 and others and provide some best-practice suggestions to organisations on how to manage their volunteers.

X was a volunteer adviser for Mid Sussex Citizens Advice Bureau (CAB). She had a number of legal qualifications and had volunteered to further her experience to assist in establishing her own business.

X had signed a volunteer agreement, which stated that it was ‘binding in honour only… and not a contract of employment or legally binding’. She had agreed to provide 4-5 hours of her time a week, but she often failed to attend. Subsequently the CAB asked X to stop volunteering. X then brought a claim in the Employment Tribunals, alleging that she had been discriminated against contrary to the Disability Discrimination Act 1995 (‘DDA’), the legislation in force at the time she brought her claim.

X argued that she was covered by the DDA as:

1. she believed that her volunteer arrangement amounted to employment in itself, or an arrangement for determining those people who should be offered employment by the CAB; and/or
2. that the volunteering arrangement counted as a work placement.

If X was right, then the protection of discrimination legislation would have been extended to her and she would have been able to pursue her claim for disability discrimination.

Employment Tribunal

The Employment Judge decided that the Employment Tribunal did not have jurisdiction to hear the case.

This was because:

1. there was no legally binding contract between X and the CAB and X was not under any obligation to provide her services to the CAB. X had therefore not been employed by the CAB;
2. the CAB did not automatically offer paid advisers’ roles to volunteers. This meant that X’s volunteering arrangements could not be said to have been for the dominant purpose of determining to whom employment should be offered;
3. X was not undertaking a work placement. The volunteering arrangement was not for the limited period characteristic of work placements and the role she was undertaking was not for the sole or dominant purpose of vocation or training: any training that she may have received was a by-product of her volunteering role.

Employment Appeal Tribunal

X appealed the decision to the Employment Appeal Tribunal, adding the argument that the she fell within the meaning of ‘occupation’ as set out in the Council Directive establishing a general framework for equal treatment in employment and occupation.

The Employment Appeal Tribunal rejected the appeal on all grounds, upholding the reasoning of the Employment Judge and holding that the meaning of ‘occupation’ within the Directive was not intended to embrace unpaid volunteer work.

Court of Appeal

X then appealed to the Court of Appeal.

The Court of Appeal dismissed the Claimant’s appeal, upholding the Tribunal’s decision for the reasons that were given by the Employment Judge and by the Employment Appeal Tribunal. In relation to the ‘occupation’ argument, the Court of Appeal held that X fell outside the scope of employment and occupation under the Directive, stating that it was not obviously desirable to include volunteers within the scope of discrimination legislation: the Court of Appeal noted in its Judgment that the Council had rejected proposals at the time of drafting to including wording in the Directive that unpaid workers were also covered and said that it was inconceivable that those drafting the Directive would not have dealt specifically with volunteers if they had meant them to be included.

The Supreme Court

X appealed to the Court of Appeal.

Her claims for discrimination were resisted by the Citizens’ Advice Bureau in which they argued that she was not protected by European law or domestic law because she was a volunteer and had no binding contract with the Citizens’ Advice Bureau. The Supreme Court agreed that neither domestic legislation nor European discrimination law applies to volunteers in X’s situation.

Implications

This case will clearly be welcomed by those organisations that engage a number of volunteers.

You should however note that organisations have a duty of care to volunteers and responsibilities towards them. Although the claimant in the above case failed in her attempt to extend the protection offered by discrimination law as it stands at the moment, the cases were fact specific and it is possible that some unpaid workers may be entitled to protection against disability discrimination and other forms of discrimination under UK law if, for example, they can demonstrate that they had a legally binding contract personally to do work, or if they were in a work experience or vocational training placement; for example interns.

Following this decision the following should be considered.

1) The status of your volunteers
You should make it clear that your volunteers are just that. Avoid using language referring to ‘obligation’, ‘appointment’, ‘jobs’, ‘job descriptions’ and ‘contracts’; possible alternatives to use are ‘expectation’, ‘arrangement’, ‘roles’, ‘role description’ and ‘volunteer agreement’.

2) Money
Don’t pay your volunteers! You should only reimburse their out-of-pocket expenses that are actually incurred. If you pay more than out-of-pocket expenses (for example, a flat-rate monthly allowance) then this may be seen as income, which can be one of the indications of a worker or employee relationship rather than a purely volunteer arrangement and which may, of course, be taxable.

3) Young people
Unlike with employment, there are no legal restrictions on the youngest age at which young people can volunteer. However, people under the age of 18 are legally classed as vulnerable and, particularly for those people under 16, you should ensure that there are child protection measures in place.

Any volunteers under the age of 16 should have parental or guardian consent to volunteer and, where appropriate, you should also seek parental or guardian consent for young people between the ages of 16-18. Where parental or guardian consent is not obtained for those over the age of 16, volunteer coordinators should encourage volunteers to discuss their volunteering activities with their parents or guardians.

You should undertake a risk assessment when placing a young person in a volunteer role and, as a general guide, we suggest that you have the following three principles in your mind at all times:

1. young people should not be left unattended;
2. young volunteers should, if possible, be supervised by two or more adults;
3. any potentially dangerous activities should have constant adult supervision.

Don’t forget to check that your insurance policy covers young volunteers, as some may have a minimum age of 16 or 18.

If you have any questions regarding this briefing, then please contact:

Sejal Raja
sejal.raja@rlb-law.com

© RadcliffesLeBrasseur


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.