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Volunteers not protected by anti-discrimination laws

3 November 2009

Discrimination protection laws do not apply to volunteers, the Employment Appeal tribunal has ruled.

The claimant, a disabled welfare rights specialist with Mid Sussex Citizens Advice Bureau, was asked to stop volunteering at the CAB after repeatedly failing to turn up on the days she was expected.

She argued that she had been discriminated within the Disability Discrimination Act.

She said the judge should read the term “employment” in the Act to include “occupation”, as suggested by the EU’s equal treatment framework directive, thereby covering volunteer work.

Mr Justice Burton rejected the argument, saying that there was no authority suggesting that “occupation” was meant to cover unpaid employment.

The case comes only two months after a similar case was referred to the European Court of Justice.

The Scottish tribunal in Masih v Awaz FM said the issue of whether religious discrimination laws should apply to the case of a volunteer working at a local radio station should be determined by the Luxembourg judges.

However, in X v Mid Sussex Citizens Advice Bureau, Burton J decided no such reference was necessary.

Accepting the argument of counsel for the CAB, Paul Michell, of Cloisters, he said that the term “occupation” was used in the directive solely in the context of access to employment, covering areas such as training and vocational qualifications but not voluntary work.

He added that European law clearly required a mutuality of obligations between worker and employer, a set of binding rights and obligations between the two parties which was missing in this case.

The judge also dismissed suggestions that English law was in breach of the directive and should be construed in such a way as to give effect to it.

“I am not persuaded … that there has been non-compliance by the UK government with the Framework Directive, or that such alleged non-compliance should be used so as to rewrite or inform the anti-discrimination legislation,” he said.

However, the judge provided some reassurance to workers in the voluntary sector that they would ordinarily be protected either under employment or contract law.

“This is not a case in which the position of all voluntary workers falls to be determined. Some are already protected. It is common ground that voluntary workers who have a contract with those to whom they supply their services, by which they contract personally to do any work, are protected as a result of the wide definition of employment applied to section 4 of the DDA by section 68,” he said.

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