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Volunteers not covered by anti-discrimination legislation

26 January 2011

Charity volunteers working unpaid do not fall within the scope of anti-discrimination employment laws, the Court of Appeal has ruled.

Giving judgment in X v Mid Sussex Citizens Advice Bureau, Lord Justice Elias rejected the contention that volunteering constituted an ‘occupation’ for the purposes of employment law.

X, a volunteer caseworker with a Citizens Advice Bureau, claimed she had been discriminated against her on grounds of disability when she was asked to cease volunteering for the CAB.

Elias LJ said it was “far from obvious that it would be thought desirable to include volunteers within the scope of the discrimination legislation relating to employment”.

The judge agreed there was “a genuine debate” about the issue but said there were clear indications that the EU directive that brought anti-discrimination rules into English law did not intend to cover volunteering.

“The matter was specifically addressed by the European Commission and when a proposed amendment was introduced, the European Council chose not to introduce it. They must have had doubts as to its desirability,” he said.

According to Elias LJ it was “inconceivable” that the EU would not have dealt specifically with the position of volunteers if the intention had been to include them.

Volunteers were extensively employed throughout Europe, the judge said, and it was “unrealistic” to believe that they were intended to be covered by concepts of employment and occupation which would not naturally embrace them.

He continued: “The concept of worker has been restricted to persons who are remunerated for what they do. The concept of occupation is essentially an overlapping one, and I see no reason to suppose that it was intended to cover non-remunerated work.”

Elias LJ conceded the fact the EU institutions appeared to have implicitly excluded volunteering from the scope of the equal treatment directive was “not a decisive consideration” and that “the common perception may have been wrong”.

But he said it carried “considerable weight” and that “that understanding jars with the submission that it is obvious that the draftsman must have intended to include volunteers within the scope of the directive”.

Just over two years ago a Scottish employment tribunal referred a similar question to the European Court of Justice.

In Masih v Awaz FM, a christian minister volunteering with a local radio station claimed he had been discriminated on grounds of religion.

Masih had been working as a presenter with the station for six years when he was asked to leave.

The reference was appealed and listed for a hearing on 25 June last year.

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Regulators Discrimination Costs