The Supreme Court has today (12th December 2012) handed down its first decision on the legal status of volunteers, which considered whether volunteers are protected from acts of discrimination on grounds of disability by virtue of the European Equal Treatment Legislation.

In the case of X v Mid-Sussex CAB, the Supreme Court, upholding the earlier decisions of the Court of Appeal and the Employment Appeal Tribunal, confirmed that volunteers are not afforded protection by the European Equal Treatment Legislation. BWB acted for the CAB.

The case concerned a volunteer who alleged that she had received less favourable treatment because of her disability. The CAB denies her claim but the allegations have not been determined by the courts which have only dealt with the preliminary legal issues.

The case was struck out at a preliminary stage by the Employment Tribunal. The Tribunal held that the volunteer did not have a contract with the CAB and that therefore she was not protected by Disability Discrimination Legislation. The volunteer appealed to the Employment Appeal Tribunal, the Court of Appeal and again to the Supreme Court. Her argument before the Supreme Court was that certain volunteers are protected by European Equal Treatment Legislation. The European Legislation covers “occupation” which she argued should include volunteering. The volunteer contended that a reference should be made to the European Court of Justice to determine whether European Legislation covers voluntary activities.

Rejecting the arguments put forward by the appellant and the Equality and Human Rights Commission, the Supreme Court concluded that the European Legislation did not include protection for volunteers. The Court concluded the position was clear that accordingly a reference to the European Court of Justice was not necessary. The Appellant’s appeal was therefore not upheld.

It is important to remember that existing domestic legislation would give volunteers legal protection against discrimination if there is a contract between the individual and an organisation. This would include any form of written contract but would also include situations where a contract could be implied by the conduct of the parties. For example, a contract could be implied if volunteers are paid anything in addition to expenses actually incurred, if volunteers are required to volunteer for a minimum length of time in return for training, or if there is an absolute requirement for the volunteer to work a given number of hours. Volunteers could of course be requested to work certain hours, but it should be clear that there would be no sanction if they failed to do so. Volunteers would also be protected under existing legislation if they were also an applicant for an employed role or if volunteering was a prerequisite for employment.

Posted on 12/12/2012 in BWB News

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