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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