Disabled volunteers can be discriminated against

28 January 2011 by Isabel McArdle

X v Mid Sussex Citizens Advice Bureau [2011] EWCA Civ 28 – Read judgment

The Court of Appeal has ruled that disabled people are not protected by domestic or European legislation against discrimination when they undertake voluntary work.

In this decision the specific question was whether volunteers at Citizens Advice Bureaus are protected from disability discrimination. X, the anonymised claimant, argued that CAB had terminated her role as a volunteer adviser because she had a disability. She claimed that:

1. There was a breach of the Disability Discrimination Act 1995 when read with Directive 2000/78/EEC, which establishes a framework for equal treatment in employment and occupation;
2. The Directive itself gave her enforceable rights not to be discriminated against due to her disability.

The Domestic Law Argument

The Disability Act 1995 has been replaced by the Equality Act 2010, but Section 4 of the 1995 Act was in force at the time when X’s role was terminated. X argued that section 4(1) (a) applied to her case. It provides:

(1) It is unlawful for an employer to discriminate against a disabled person–

(a)    in the arrangements which he makes for the purpose of determining to whom he should offer employment.

X argued that her case fell within this provision, because obtaining a voluntary position at CAB was very helpful in obtaining a permanent employed post.

The Court rejected this argument. The purpose of offering volunteer positions was to provide advice to clients of CAB, not to determine who should be offered employment or improve the employment prospects of the volunteers.

The European Law Argument

In order for her case to fall within the Directive’s scope, X had to show that her situation had been one of employment or occupation. X argued that she was in an occupation, relying on a definition derived from case law including European Court of Justice decisions:

Occupation is the carrying out of a real and genuine activity which is more than marginal in its impact upon the person or entity for whom such activity is carried out and which is not carried out for remuneration or under any contract.

X argued that such an interpretation was necessary to assist disabled persons in securing voluntary work, which helps integration into the labour market.

CAB argued that such an interpretation would be very vague, creating uncertainty; that if volunteers were intended to be within the Directive’s scope, it would have explicitly included them; when the Directive was a draft and reached the stage of going before the Council of Ministers for approval, amendments including explicit reference to voluntary work were rejected. Occupation therefore was not intended to include the voluntary sector.

The Court did not accept X’s arguments:

First, it is far from obvious that it would be thought desirable to include volunteers within the scope of the discrimination legislation relating to employment. As I have indicated, there is a genuine debate about that (Elias LJ, paragraph 60).

Further, the drafting of the Directive would have made express reference to voluntary work if it was intended to apply to it. Occupation, within the meaning of the Directive, was meant to refer to a “class or category of jobs” (Elias LJ, paragraph 62).

Consequently, no protection for disabled volunteers against discrimination in their voluntary activities was found to exist on the basis of discrimination legislation.

The current economic climate will inevitably lead to more people undertaking volunteer work in the hope of securing an elusive job at some point in the future. As such, this decision will affect a large, and growing, group of people. The case has already generated controversy, with the Equality and Human Rights Commission, who intervened in the case on the side of X, saying in a Guardian article:

Given that many employees begin their working life as volunteers, which provides them with valuable experience which they can use as a step up to paid employment, it seems unfair that certain groups of people can legally be denied this experience. If this case does go to the supreme court, the commission will hope to have our views heard.

So the case may ultimately reach the Supreme Court. If so, it will be interesting to see whether the court decides to extend protection to volunteers, or simply agrees that if the legislators had intended such protection, it have been explicitly included in the Disability Discrimination Act.

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