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Supreme Court, December 2012
The Supreme Court held that an unpaid volunteer was not protected by the EU Framework Employment Directive as having an 'employment' or 'occupation'. Since she did not otherwise fall within the employment provisions of the DDA, her disability discrimination claim failed.
The claimant was a specialist adviser for welfare rights at the Citizens Advice Bureau, as a part-time unpaid volunteer. She was asked to cease to attend as a volunteer, in circumstances that she claimed gave rise to a claim under the Disability Discrimination Act 1995 (DDA). The Employment Tribunal held that she did not have a legally binding contract, nor a 'work placement' as defined in the DDA. Accordingly the DDA did not apply to her.
She argued before the Supreme Court that the EU directive required her volunteering to be protected, even though the wording of the DDA did not cover it. Lower courts and tribunals also considered the wording of the DDA.
The Supreme Court held that the Framework Employment Directive does not extend the protection of volunteering beyond that already given by the DDA (now the Equality Act 2010).
The Directive covers 'employment' and 'occupation'. The claimant argued that the reference to 'occupation' in article 3(1)(a) of the Directive was wide enough to cover her voluntary activity. The Supreme Court disagreed. It held that 'occupation' in the Directive refers to being able to become a solicitor, or a plumber for example, rather than getting a post with a particular employer.
The Supreme Court decided also that there was no scope for reasonable doubt on its conclusion The matter should therefore not be referred fo the EU Court of Justice.
Voluntary activity might fall within article 3(1)(b) of the Directive, which covers vocational guidance and vocational training, including practical work experience. However that did not apply on the facts of this case.
'"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 like reasons to those which I have pointed out ... above, the appellant did not.'
These are some of the other arguments which were considered and rejected by lower courts, and which did not get to the Supreme Court:
The Court of Appeal rejected the claimant's argument that the Citizens Advice Bureau made its arrangements for volunteer workers "for the purpose of determining to whom [it] should offer employment" within DDA s.4(1)(a). The purpose here was to secure advisors to provide advice to clients, not to create a potential pool from which full time staff could be drawn. (Note: the Equality Act wording is somewhat different from that in the DDA: see Volunteers: Volunteering as way to assess suitability for employment.)
The employment tribunal considered whether this was a 'work placement', which is defined in s.14C(4) DDA as "practical work experience undertaken for a limited period for the purpose of a person's vocational training". The employment tribunal judge concluded that the experience was not for a limited period, and also that training was not the dominant or sole purpose of the arrangement. Receiving training was a by-product - the purpose of the arrangement was for her to give advice as a volunteer. (Note: the definition of 'work experience' under Equality Act 2010 is somewhat wider: see below Comment: Work placements.)
When the case got to the Court of Appeal, that point was not longer argued. However, the EHRC argued that the post was a form of vocational training, and that the claimant had been denied access to it in breach of Article 3(1)(b) of the Directive. The Court of Appeal rejected this. As the employment judge had said in the context of s.14C(4), the purpose of the Bureau appointing volunteer workers was not to provide training. Also the volunteers were not being trained in any sensible meaning of the term - they were providing services for third parties in the same way as full time staff. A middle manager is building up experience which will help him become a senior manager, but it would be an abuse of language to describe him as undergoing vocational training.
There was no legally binding contract in her case. Accordingly the claimant was not someone who "contracts personally to do work" within s.83(2) EqA.
If the courts had considered volunteers to fall within the Directive, the Court of Appeal considered there would have been a strong argument that the case of Kücükdeveci would permit the Directive to be directly enforced against the Citizens Advice Bureau, even though it was a private party rather than a state. The Court of Appeal was not attracted to an argument by the Secretary of State that whereas protection from age discrimination may be a fundamental EU right, protection from disability discrimination would not be. In any event the Court of Appeal would have referred to the European Court the question of whether the principle of Kücükdeveci would apply here, if it had it been necessary to refer the issue of whether volunteers fell within the Directive.
The Supreme Court commented that assuming (without expressing any view) that the DDA could not have been reinterpreted to be consistent with the Directive (under the principle in Marleasing), the question of applying the Kücükdeveci case might well have required to be referred to the EU Court of Justice.
Apart from any European law argument, volunteers fall within the employment provisions of the Equality Act or (previously) the DDA only in relatively limited situations, for example training and work experience: see Volunteers.
The UK Government has consistently resisted calls to bring volunteers generally within the scope of the Equality Act.
The claimant was not arguing that all voluntary work falls within the EU Directive. In the tribunals below, she argued that volunteer activities fell within the Directive if they were a sufficiently significant or important part of the Bureau's function so as to be not merely 'marginal', such as the following of a hobby, or occasional provision of assistance.
It has been argued that there may often be scope to say a volunteer is protected by the Equality Act as being a member of association. See Volunteers: Volunteer as member of an 'association'.
On the employment tribunal's consideration of the term 'work placement', note that the position is different under Equality Act 2010. EqA S.56(6)(b) says that vocational training within the Act includes "work experience (including work experience the duration of which is not agreed until after it begins)". So it is not clear that the work experience needs to be for a "limited period", and it is at least not an express requirement within the definition that the experience must be "for the purpose of a person's vocational training". (For more, see Employment services: Work experience.)
European Union: Framework Employment Directive
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Last updated 17th December, 2012