X v Mid Sussex Citizens Advice Bureau and another  UKSC 59
Volunteers are often the key ingredient to the successful running of an organisation in the third sector and also in the world of sport. After appeals from the Employment Tribunal through to the Court of Appeal, the Supreme Court have now ruled in favour of Mid Sussex and against Ms X, concluding that a volunteer without a contract is not covered by discrimination law under the Equality Act or otherwise under the Equal Treatment Directive.
Whilst this decision undoubtedly brings welcome relief to employers concerned about the additional burden that enhanced rights for volunteers would bring, it serves as a useful reminder of the importance in ensuring that volunteer relationships are properly planned and implemented, with documentation pertaining to volunteers being particularly important.
Ms X, who was HIV positive, became a volunteer adviser for the Citizens Advice Bureau ("CAB") from 12th May 2006 following an interview where it was explained that there would be no binding legal contract between her and the CAB. This was confirmed by Ms X signing a document which was headed "This agreement is binding in honour only and is not a contract of employment or legally binding." Importantly, the Employment Tribunal concluded that no legally binding contract came into existence and this was never disputed thereafter by Ms X.
Ms X indicated her availability to volunteer on Tuesdays, Thursdays and Fridays, but because of health problems did not always attend and sometimes changed days. No objection was taken to this and the CAB did not seek to control her hours or discuss her reliability. Ms X was absent about 25% to 30% of the proposed times and in practice attended between one and three days a week. The CAB eventually asked Ms X to cease her volunteer work on or around 21st May 2007 and she brought a claim under the Disability Discrimination Act 1995 ("the DDA") (now replaced by the Equality Act 2010).
It was Ms X's position that the volunteer arrangements amounted to "employment" in itself or alternatively an arrangement for determining who should be offered employment (on the basis CAB volunteers often went on to become paid CAB advisers). It was further argued that the volunteering arrangement was a "work placement" under the DDA.
The Employment Tribunal, Employment Appeal Tribunal, Court of Appeal and now the Supreme Court have held that the Employment Tribunal had no jurisdiction to hear Ms X's case, on the basis that, as a volunteer, she was outside the scope of the protection offered by the DDA. In the unanimous judgment of the Supreme Court, Lord Mance gave nine reasons for reaching the conclusion that the relevant legislation did not cover voluntary activity. The reasons given included:
1) the fact that there is no general EU law principle of equality;
2) "Access to Occupation" concerns "access to a sector of the market rather than particular employment or self-employment";
3) Ms X's case ran "contrary to a deliberate choice made by the relevant European legislator" to exclude "unpaid and voluntary work" in the Equal Treatment Directive (the parent legislation to the Directive). It was inconceivable that those drafting the legislation would not have dealt specifically with volunteers if they had meant them to be included;
4) Ms X accepted that not all volunteers were protected but the Supreme Court considered that "had some but not all voluntary activity been intended to be covered the Directive would surely have given some indication as to where the line should be drawn"; and
5) Volunteers and workers were not in comparable positions.
Unsurprisingly, the Association of Chief Executives of Voluntary Organisations, Groundwork UK and Volunteering England were all in support of the CAB's position. They were of the view that an opposite conclusion would have undermined the nature of volunteering, create practical barriers and additional costs for charities and other organisations in which volunteering occurs. They were concerned that this would result in a formalisation which was unwanted by most volunteers.
It should also be noted that this case applies equally to the scope of the Equality Act 2010 which replaced the DDA. Employers and organisations should be aware that even although the volunteer in the present case was not covered by the relevant legislation, matters will be dealt with on a case by case basis and will depend on the relevant facts and any contracts, agreements or other documentation which is put in place.
Key issues to consider in handling volunteers should include:-
Volunteering notices which make it expressly clear that no employment relationship is being created and that no contract of employment is in existence. A good volunteering notice will avoid using language that makes the arrangement sound contractual and adopt flexible language, such as "usual" and "suggested".
Dispute resolution procedures unique to volunteers. Organisations should be aware that in applying disciplinary and grievance procedures to employees, workers and volunteers alike there is a danger that a tribunal could find that volunteers are in fact employees. Separate policies for each of these groups would minimise this risk.
Training, health and safety and processes etc – organisations should be clear that although there is no obligation to apply disciplinary procedures to volunteers they are under an obligation to ensure that persons not in their employment such as volunteers, who may be affected by their organisation, are not exposed to risks to their health and safety.
Finally, organisations and employers should bear in mind that had this decision been decided in favour of Ms X it could potentially have resulted in an award of compensation against the CAB for a six figure sum. It would therefore be prudent for organisations to check any documentation narrating the arrangements between them and any volunteers. The importance of any such documentation should not be underestimated and casual references to "contract" and "employment" could result in volunteers being more successful at tribunal than Ms X.