Treated equally: protecting all volunteers from discrimination

Volunteers do not qualify for protection from discrimination under European or domestic anti-discrimination legislation covering employees unless they work under a contract or are undertaking vocational training, the Supreme Court held in X v Mid Sussex CAB [2012] UKSC 59. Dismissing X’s appeal, the court held that the law in this area was sufficiently free from doubt, so that there was no need to refer any questions to the Court of Justice of the European Communities.

The judgment reaffirms the principle that in order to be an “employee” within the wider meaning of that term in anti-discrimination legislation, the person must operate under a contract, with remuneration being highly relevant to that issue. Without a contract, there is no protection, regardless of the nature of the work, the hours undertaken the commitment demonstrated, the volunteer’s integration into the organisation, or the degree of control they submit to (unless they fall within the vocational training exception).

This leaves the door open to volunteers who do receive some form of non-monetary consideration for their services to argue that there was a contract between them and the relevant organisation. In some cases, there might be vocational training or practical work experience such that the volunteer could rely on the specific domestic provisions which cater for those using the services of “employment service providers” (see sections 55 and 56 of the Equality Act (EqA) 2010). However, there could well be other forms of consideration which would not amount to provision of an employment service that would qualify as consideration, such that the volunteer would be an “employee”.

A useful guideline case is Udo Steymann v Staatssecretaris van Justitie (Case C-196/87), in which a person who was not paid (and was not undertaking vocational training) was nonetheless held to be a worker under European free movement law. Notwithstanding the fact that this case focused on the concept of “worker”, the circumstances of the case could be useful in cases brought by unpaid workers under the employment provisions of the EqA 2010. Those circumstances revealed Steymann to be doing work of some economic value.

It is also worth remembering that specific provisions on the EqA 2010 cover some unpaid workers. For example, barristers are protected from discrimination under section 47(6) irrespective of whether they are engaged on a paid or unpaid brief. Similarly, the protection afforded to office holders does not specify that such offices must be paid.

Hopeful interns

Lord Mance, giving the only judgment in X, said volunteers came “in many forms, including the cheerful guide at the London Olympics, the charity shop attendant, the intern hoping to learn and impress and the present appellant who provided specialist legal services. The intern might well fall within article 3(1)(b) [of Directive 2000/78/EC]”.

Article 3(1)(b) applies to those seeking access to “vocational training” and “practical work experience”. The court envisaged protection for interns that may be broader than or different to that already provided in respect to those using employment services (as defined in section 56 EqA 2010) depending on a future case interpreting that article. There is a need for some guidance on this issue.

A private member’s bill promoted by Hazel Blears MP seeking to prohibit the advertising of long-term unpaid internships and to regulate conditions of employment for paid internships received its first reading on 5 December. The hope is that through the passage of this Bill, the government will address the position of interns under anti-discrimination legislation and thus provide some certainty. However if this is not done, it is arguable that they are protected by a mixture of domestic and EU law.

Redress routes

The Supreme Court judgment was silent on other routes for redress which might be open to volunteers who: do not have a contract; are not a specifically-protected category (office holders, barristers, etc); and are not using the services of an “employment service provider”. There is an argument that all other volunteers are protected by domestic law set out in the goods and services provisions of the Equality Act 2010. Indeed, during the passage of the Act, the Solicitor General said volunteers were “currently protected from discrimination, victimisation and harassment in respect of the provision of goods, facilities and services to the public. As recipients of services — for instance, from an agency that arranges placements—there would be protection, which has been extended to cover age. Such discrimination might be highly relevant. Changing the laws proposed would provide a remedy in an employment tribunal instead of a county court, but there is a remedy already.”

A probing amendment was withdrawn on the strength of this assurance. The logic of the argument is that volunteers are “service users”, a section of the public; and they are given the opportunity to work by the organisation. If the organisation is a service provider, the claim can be brought in the county court by any type of volunteer, including the tea giving a helping hand at the fete.

But requiring volunteers to rely on the goods and services provisions of the Equality Act may lead to some rather odd results, such as different tiers of protection for unpaid workers, as “service users”, compared with paid workers, as “employees”. The most notable peculiarity is that the protection against discrimination in goods and services does not extend to discrimination because of marriage or civil partnership. Moreover, notwithstanding that age is now covered under the goods and services provisions, there are numerous exceptions which do not apply to the employment provisions of the Act (before 1 October 2012 age discrimination was excluded but it is now within scope). For example, those under the age of 18 have no rights whatsoever to protection against age discrimination in the realm of goods and services. Hence, a volunteer under 18 years who is denigrated by the organisation they volunteer for, because of their age, is outside the scope of the EqA 2010 altogether.

Volunteers who do fall within the goods and services provisions will be required to go to a county court to enforce their rights whereas an employee or the user of an employment service (under section 55 EqA) is entitled to go to an employment tribunal. Tribunals are more accustomed to determining discrimination claims and are familiar with the dynamics of the workplace.

Imagine an employee who volunteers to undertake certain activities (for their employer) which fall entirely outside of their paid duties. For example, a teacher who agrees to coach the school football team at weekends. If that employee was discriminated against by the employer during the course of the unpaid activities would they be able to sue under the employment provisions of the Act or must they sue in the county court? What if they suffered separate acts of discrimination during their normal duties and during their unpaid volunteering duties? Would they have to run concurrent claims in the tribunal and the county court in order to fully enforce their rights?

Consolidating protection

In some circumstances unpaid workers will be protected by anti-discrimination legislation. However, the variety of mechanisms and differences in forum demonstrate a piecemeal approach. So would it be beneficial or detrimental to consolidate the protection applicable to unpaid workers and create some certainty and consistency?

Various volunteer organisations oppose extension of the law, however. They made their views known during the proceedings in X where it was stated that such an extension would “undermine the nature of volunteering, create practical barriers and additional costs for charities and other organisations in which volunteering occurs, and result in a formalisation unwanted by most volunteers”.

It is difficult to see what additional costs might be entailed by legislating against discrimination in respect to most protected characteristics. One can of course envisage costs being incurred in seeking to make adjustments to premises or practices so as to accommodate disabled volunteers. However, even this fear is overstated because only “reasonable” adjustments are required by law. Clearly, if the legislation were extended to protect all volunteers, tribunals and courts would consider the full circumstances of each case when deciding whether an adjustment was reasonable or not.

If a disabled volunteer only offered to help on a few occasions, it is unlikely that a judge would find against an organisation that refused to incur significant expense in facilitating that person’s participation. There may of course be legal costs associated with legal claims, but this would be the case irrespective of whether the volunteer is required to sue in the county courts (under the goods and services provisions) or in the employment tribunal, assuming they had protection under the employment provisions. Indeed, the latter may actually be cheaper for the organisation facing a claim for discrimination.

Piecemeal and patchy

Unpaid workers will have some legal redress if they suffered unlawful discrimination while undertaking volunteer activities. However, such protection is piecemeal and patchy. The Supreme Court’s decision in X gives clarity as to the venue in which such cases may not be litigated but it also the legislative lacunas and demonstrates that there is no underlying principled basis to explain ?such differences. In the opening paragraph of the judgment in X, Lord Mance underlined the moral imperative on organisations not to discriminate. If we accept that it should play no part in employment and occupation, why permit it in the gateways to employment and occupation where initial experience and employability is gained?