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A long awaited appeal regarding the status of volunteers has finally been settled in the Supreme Court X v Mid Sussex Citizens Advice Bureau and another (Respondents) [2012] UKSC 59 this week (12 Dec 2011).

At issue was the question, does a volunteer have rights as an employee under the Disability Discrimination Act 1995 and Council Directive 2000/78/EC. In dismissing the appeal the court found that ‘we do not regard this as a case in which a reference to the Court of Justice is either required or appropriate, and would dismiss this appeal, leaving aside the subject matter of guidance, training and work experience covered by article 3(1)(b), article 3 is not directed to voluntary activity.

Interestingly the judgement referenced the final Report of the Disability Rights Task Force (December 1999) “From Exclusion to Inclusion“, that emphasises the difficulty of extending anti-discrimination legislation into the area. The Report at paragraph 38 reported its awareness of “the diversity of organisations that engage volunteers, from small local community groups with few resources to large national charities. Volunteers also undertake a wide range of activities from one-off charity collections for a few hours to regular part-time work. We recognised that organisations may have concerns about being held legally responsible for discrimination by one volunteer towards a disabled volunteer, especially given the lack of control over who is engaged as a volunteer and to some extent what they do and the absence of available sanctions. Similarly organisations may feel that the burden of having to understand the law in this area and make reasonable adjustments, for a volunteer working just a few hours, is too onerous.

The appeal was not allowed so much of the argument on the interpretation of and use of language and serves no real benefit to us and this case should now put to rest the vexed question of what defines occupation and employment with regard to those who are truly volunteers.  We can now safely assume that properly structured, the role of volunteers in a place of work is distinct from an employee or worker or intern for that matter.

The connected facts, as summarised by the original EAT, Judge Stacey are:

(i) The Claimant applied on 28 April 2006 to be a volunteer with the CAB, indicating that she would like to volunteer for 4 to 5 hours per week.

(ii) She was given a volunteer agreement, which she signed on 12 May 2006 and which was described as being “binding in honour only … and not a contract of employment or legally binding” (paragraph 9 of Judgment 1).

(iii) The Claimant, who had a number of academic and practical qualifications in law, undertook a wide range of advice work duties. No attendance records are kept for volunteers, but the Claimant frequently did not attend on the days she was expected, approximately 25-30 per cent of the time, and no objection was ever taken to this or to her changing the days she came in.

(iv) It is not automatic that such or any volunteering would lead on to a paid job or employment at the CAB. Volunteers are not given preferential treatment in applying for paid jobs with the Bureau, and all paid posts are advertised externally, and an open recruitment exercise adopted: nor is it a requirement of appointment to a paid post within the Bureau that a candidate should have any background or training with the  CAB  service.

In circumstances that are not relevant here, the Claimant was asked to cease to attend as a volunteer: hence her claim for disability discrimination.

Supreme Court citation: [2012] UKSC 59

Linked case: Appeal No. UKEAT/0220/08/SM UKEAT/0511/08