Volunteers not entitled to protection of disability discrimination laws
14 December 2012
X(Appellant) v Mid Sussex Citizens Advice Bureau and another (Respondent) [2012] UKSC 59 – read judgment
The Supreme Court has confirmed the Court of Appeal’s view that voluntary occupation does not attract the protections of the Equality Act or the Framework Directive.
Background
The appellant had worked as a volunteer adviser for the Citizens’ Advice Bureau since 2006. In 2007 she claimed that she was asked to cease work in circumstances amounting to discrimination on grounds of disability. She sought to bring proceedings against the respondent but the Court of Appeal held that the Employment Tribunal had no jurisdiction to hear the case as she was a volunteer rather than an employee, and therefore fell outside the scope of protections against discrimination under the Disability Discrimination Act 1995 (now covered by the Equality Act 2010) and Directive 2000/78/EEC (“the Framework Directive”). See Isabel McArdle’s post on that decision here.
In this appeal the appellant contended that her voluntary activities constituted an “occupation” for the purpose of the Framework Directive and therefore the effect of the Directive should extend to her either under the principle in Marleasing Case C-106/89 (which requires courts of Member States to read down the words of domestic legislation in order to conform to EU law). Alternatively she argued that the general principle of equality contained in Article 19(1) TFEU, taken in combination with the Framework Directive which was enacted to crystallise it, gave her a direct claim under the principle in Mangold v Helm Case C-144/04.
She also argued that if the Framework Directive was open to reasonable doubt, reference should be made to the Court of Justice of the European Union (CJEU) for a preliminary ruling to clarify whether the Directive applies to at least some categories of volunteer.
The Supreme Court dismissed appeal in its entirety.
Reasoning behind the Court’s judgment
The Court held unanimously that the appellant had no contract and therefore did not on the face of it benefit by the domestic protection afforded by the DDA. Whether she could have any claim thus depended upon whether it was the intention of Article 3(1)(a) of the Framework Directive that there should be a wider protection covering volunteers in her position. The Court was of the view that this was not the intention and no reference was needed to the CJEU.
Lord Mance found, in particular, that the Directive is not unlimited in scope or extent. It confers carefully defined protections against discrimination on grounds of disability to apply in specified circumstances. The legislative history of the Directive confirms 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 emanating from the European Parliament which would have extended the meaning of the provision in the way contended for by the appellant. Nor has it ever been suggested by the Commission that the apparent absence in the UK, or any other Member State for that matter, of general protection in respect of volunteers amounts to a failure to properly implement the Directive.
A preliminary reference was not necessary because there is no scope for reasonable doubt about the conclusion that the Directive does not cover voluntary activity.
Since Article 3(1)(a) does not extend to voluntary activities of the sort undertaken by the appellant, the Court found it unnecessary to consider the issues of EU law which would have arisen from a contrary conclusion, particularly the possible relevance and scope of the principle in either Marleasing or Mangold.
Comment
In her discussion on the Court of Appeal’s judgment, Isabel McArdle wondered whether the spread of unpaid work, particularly in the form of internships, might influence the Supreme Court to extend the protection of discrimination laws to voluntary occupations. In fact Lord Mance specifically left open the question whether interns might come within the scope of these protections:
‘Occupation’ is a protean word, which can, depending on context, cover a wide variety of activities associated with work or leisure. 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 and the present appellant who provided specialist legal services. The intern might well fall within article 3(1)(b), but, for reasons to those which I have pointed out …above, the appellant did not. [15]
It would be very interesting to see how an intern in the appellant’s position would fare. There is something qualitatively different about the current necessity for young people to qualify for paid employment via a series of unpaid short term internships, versus the availability of voluntary work that is generally undertaken for a range of motives, from good citizenship to simply needing an occupation. The latter does not have the character of a career path about it. It must be right that those responsible for running such voluntary agencies should not be burdened with the shackles of employment protection. Companies offering internships on the other hand are generally in the business of employing people anyway and are unlikely to be deterred by discrimination legislation from taking on unpaid trainees.
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Bad news for serial volunteer yetti robinson. What difference does it make if you are paid or voluntary, rights are rights.
Let’s go “back to basics” as somebody once said.
At common law discrimination on grounds of race, sex, and all the other grounds was lawful. It took domestic and European legislation to change that.
There remain important areas of human life to which that legislation does not apply, some of them of great economic significance. For example: If you are rich and your children are grown up, off your hands, and not dependent you can cut out the one who marries someone of another race or religion, or of the same sex. Marie Stopes cut off one of her sons who married a woman who was short-sighted because she that that was weakening the white race – for all the good she did Ms S would not fit in well today – and that would still be lawful now.
The process has been one of carving out areas in which discrimination is forbidden; to put it more rigorously, in which the right not be discriminated against has been made to prevail against the right to choose. Where that has not happened, at a domestic or European level, the common law remains in force.
In X the SC analysed the precedents exhaustively and found that in respect of volunteers the law has not been changed – and therefore the old law applies. That does not imply any approval of the alleged actions of the CAB (and please remember that there has been and now never will be any adjudication on the facts) – only that even if they “did it” it has not been made unlawful. Yet.
For some reason the link to my blog-post didn’t appear the first time, it should be linked from this post, hopefully.
I volunteered for a disability sailing charity and for a few years I took other disabled people sailing. Then the sailing trust won a 50K lottery grant and went up-market and from there on in I was no longer welcome and eventually I was forced to resign.
Frednacj, do you want to destroy volunteering altogether?
If not, just remember that the best is the enemy of the good.
There we have it discrimination is live and kicking at the very heart of our public services. It is quite remarkable that employers can get away with discrimination even on grounds of disability because an individual happens to be a volunteer. So the message is loud and clear employers have been given the green light to discriminate against those least protected in the work environment whom they deploy and then use as nothing less than commodity. How on earth do we have the tanacity and the front to claim to be democratic and have strong anti-discrimination policies when we cannot even protect the most vulnerable?
I am just wondering if this happens in so called charitible organisations then what else have employers of the like been able to get away with?
For the individual concerned as an alternative to seeking employment rights, I would consult a personal injuries lawyer if she has suffered any physical or psychological injuries, after all a duty of care exists between the parties.
And the message must be brought home to all propective volunteers only offer your time and services for the right employer, otherwise one might find our fingers burnt well and truly.
Interesting to see a distinction between the ‘character of a career’ path for the interns, who my experience suggests will be from a more ‘professional background’, who might deserve protection from discrimination and those who are simply doing work for nothing. To me it is a fallacy that these are distinct as anyone unemployed, whether on workfare or not, will tell you that a history of volunteering is a requirement for anyone trying to find any paid employment. One rule for the interns another for the rest; modern Britain indeed.
Like MA, I’m particularly concerned about if this will be extended to the duty to make reasonable adjustments in the contexts for voluntary or mandatory work placements in the benefits system.
Just blogged on this myself. As a volunteer adviser I’m carefully considering whether I want to continue or to hang up my name badge. This case should never have been fought on the basis it was.
I don’t agree that this outcome ‘must be right’. No one was suggesting that volunteers should have full employment rights – protection from discrimination applies to just about everybody who deals with organisations. Clients of the CAB would have protection, for example – so do visitors to small family B+Bs, say.
The CAB claims to campaign for better anti-discrimination measures, so if there was a gap in the protection, then they should have been doing work to have it closed urgently. Or they should come out and side with Adrian Beecroft, and be honest that they are doing so. This outcome is a weasel-like fudge.
I’m not surprised, as the UK’s war on Deaf and disabled people has been well underway for some time now.
I hope somebody will renew this particular challenge when disabled people are forced into workfare. After all, if they are ‘working for their benefits’ then those benefits are the consideration of contract, albeit feeble, that is given in exchange for the labour.
Would the ‘voluntary’ work that Jobseeker’s are forced to do in order to obtain DWP benefits/avoid benefit sanctions be covered?