Discrimination against volunteers: X v Mid-Sussex CAB

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Discrimination against volunteers: X v Mid-Sussex CAB
Discrimination against volunteers:
X v Mid-Sussex CAB
EMMA SATYAMURTI, Leigh Day & Co
The Supreme Court’s ruling in X v Mid-Sussex CAB that volunteers
do not fall within the scope of anti-discrimination laws will be
welcomed by charities, but leaves those working without pay
even more vulnerable.
X worked as a voluntary adviser for Mid-Sussex CAB having
completed a period of training, and provided advice and
assistance to CAB clients between one and three days per
week. Her work was highly regarded and she was given
a significant degree of autonomy. X had entered into a
volunteer agreement with the CAB, which provided that
there was no legally binding contract between them and no
employment relationship.
X alleged that she was asked not to continue her voluntary
work in May 2007 and that this amounted to unlawful
disability discrimination. (X is HIV-positive.) The employment
tribunal, EAT and Court of Appeal all held that the tribunal
had no jurisdiction to consider X’s complaint. X appealed to
the Supreme Court.
Supreme Court decision
The Supreme Court unanimously agreed with the lower
courts that volunteers are not covered by either the DDA (now
replaced by the EqA) or by the Framework Directive (which
deals with discrimination in relation to disability and other
protected characteristics not covered by earlier EU legislation).
There is no free-floating principle of non-discrimination in EU
law; it applies only in specified contexts, which did not pertain
in X’s case. (The position is different for volunteers with worker
status or undertaking vocational training.)
X relied on s.4(2)(d) DDA (now s.39(2) EqA), which outlaws
discrimination by an employer against a disabled person
’by dismissing him‘. While X’s circumstances did not come
within the definition of employment in s.68(1) DDA (now
s.83 EqA) since she did not have a contract with the CAB,
she argued that the Framework Directive extended protection
to volunteers in her position. She relied on Article 3(1)(a)
under which the directive applies to ‘conditions for access
to employment … or to occupation’ (emphasis added),
and on the reference to ‘working conditions’ in Article 3(1)
(c), on the basis that these concepts encompassed her
own circumstances. Accordingly, following the principle in
Marleasing, she argued that s.68 DDA had to be interpreted
compatibly with the Framework Directive by adding a
reference to occupation.
Endorsing its own analysis in Hashwani, the court held
that the concept of ‘occupation’ referred to a ‘sector of the
market’ or profession rather than to ‘particular employment’.
Article 3(1)(a) therefore prohibited discrimination in respect
of an individual’s access to a chosen field of work. It was not
intended to cover volunteers.
The court also rejected X’s proposal of a multi-factorial test to
determine whether a particular volunteer was protected from
discrimination or not; this would lead to uncertainty and disputes.
X’s alternative argument that she had a direct claim under
EU law also failed. Finally, the court rejected as unnecessary X’s
request for a reference to the ECJ; the legal position was clear.
Comment
The court’s decision will no doubt come as a relief to voluntary
organisations, a number of which apparently wrote in support
of the CAB’s case expressing concern at the ‘practical barriers
and additional costs’ they feared would result from a finding
that volunteers were covered by discrimination law. One might,
though, note in passing that it presumably follows from the
court’s decision that volunteers cannot themselves be personally
liable for acts of discrimination, which may be less welcome.
However, while the exclusion of volunteers from
discrimination protections is now clear, the question of
whether an individual is a volunteer without worker or
employment status is often more tricky since this is determined
by law, not by what it says on the tin. (It is perhaps surprising
that in Mid-Sussex CAB X did not seek to claim worker status.)
BRIEFING March 2013 15
Running
Discrimination
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volunteers:
length X v Mid-Sussex CAB
‘it would be a sad irony if voluntary organisations, many of which work on
behalf of the most vulnerable people, were to regard the Supreme Court’s
decision as an excuse to display prejudice against volunteers’
Following the test in Ready Mixed Concrete and subsequent
case law, key factors in determining employment status in
practice include:
• whether there is a contractual obligation on the
organisation to provide work, and on the individual to
perform it;
• the degree of control exercised by the organisation over the
individual;
• the length of time for which the individual’s services
are provided and the extent to which the individual is
embedded in the organisation;
• payment of ‘expenses’ which is really reward for work;
• training which is aimed at enabling the individual to
perform work (where there is an obligation to perform that
work);
• whether there is a promise of future paid work, which
can amount to consideration for purposes of creating
contractual relations.
The last three may be particularly relevant to volunteers.
There have been several cases specifically concerning the
status of volunteers. The fact-sensitive nature of this issue
and the unpredictability of the courts’ approach are illustrated
by two. In Murray, the EAT found that in the absence of
remuneration an employment contract may still have arisen
where Mr Murray was committed under a volunteer agreement
to attending at certain times and for a minimum period, and
where in turn the CAB was to pay his expenses and provide
him with training. By contrast in South East Sheffield CAB, the
EAT held that the stipulation of a ‘usual minimum commitment’
in respect of volunteers’ hours, and a request for volunteers
to give as much notice of leaving as possible, were merely
expectations, not contractual obligations.
The position of one category of volunteers – unpaid interns –
has attracted particular controversy recently. While it may seem
desirable for organisations to have the flexibility to offer genuine
work experience and volunteering opportunities without facing
demands for pay and other employment rights (reflected in the
exclusion of some voluntary workers – eg for charities – from the
right to the minimum wage), the exploitation of (often young)
people as a source of free labour is of real concern. Interns
(like other volunteers) with worker status are protected from
discrimination, but they may also rely on Article 3(1)(b) of the
Framework Directive, which outlaws discrimination in the context
of vocational training and ’practical work experience’.
16 BRIEFING Vol. 20 No. 2
Organisations can minimise the risk of volunteers acquiring
employment status by, for example, avoiding remuneration
and ‘perks’ (which may be regarded as consideration giving
rise to a contractually binding agreement), ensuring that
reimbursement of expenses is just that (rather than disguised
remuneration), and allowing the volunteer freedom in
relation to hours to be worked and tasks undertaken. Even
then, organisations may still face discrimination claims from
volunteers under the goods and services provisions of the EqA,
though the characterisation of volunteers as ‘service-users’ –
using the service of being allowed to volunteer? – will often
be an unconvincing description of the relationship.
Whatever the legal position, it would be a sad irony if
voluntary organisations, many of which work on behalf of the
most vulnerable people in society, were to regard the Supreme
Court’s decision as an excuse to ignore, or worse display,
prejudice against volunteers on whose generosity and good
will so much valuable work depends.
KEY:
Mid-Sussex CAB
X v Mid-Sussex Citizens Advice Bureau [2012] UKSC 59
Marleasing Marleasing SA v La Comercial Internacional de Alimentacion SA (Case C-106/89) [1990] ECR I-4135
DDA
Disability Discrimination Act 1995
EqA
Equality Act 2010
Framework Directive
EU Council Directive 2000/78/EC
Hashwani Hashwani v Jivraj [2011] 1 WLR 1872
Ready Mixed Concrete Ready Mixed Concrete (South East Ltd) v Minister of Pensions and National Insurance [1968] 2 WLR 775
Murray
Murray v Newham Citizens Advice Bureau [2001] ICR 708
South East Sheffield CAB
South East Sheffield Citizens Advice Bureau v Grayson [2004] IRLR 353

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