Volunteer Could Not Bring Disability Discrimination Claim

The Supreme Court has confirmed that a volunteer could not claim disability discrimination as she was not “in employment”. 

In X v Mid Sussex Citizens Advice Bureau, X was a volunteer with the CAB, working 4-5 hours per week.  She signed a volunteer agreement which stated that it was binding in honour only and was not a contract of employment or legally binding.  She claimed disability discrimination when she was asked to cease as a volunteer. 

Under the Disability Discrimination Act 1995 (DDA), an employer was prohibited from discriminating against a disabled person “whom he employs” and "in the arrangements which he makes for the purpose of determining to whom he should offer employment".  Employment was defined as "employment under a contract of service or of apprenticeship or a contract personally to do any work".  Similar provisions are now contained in the Equality Act 2010. 

The tribunal, EAT and Court of Appeal all ruled that there was no jurisdiction to hear the claim as she had not been “in employment”.  There was no legally binding contract and X was not obliged to provide any services.  In addition, X’s volunteering arrangements were not for the purposes of determining to whom employment should be offered.  Volunteers were not automatically offered a paid adviser role, and any increased likelihood of being offered paid employment was merely a by-product of volunteering.

The Supreme Court dismissed X’s appeal.  X did not have protection under the DDA because she did not have a contract with the CAB, as required by the definition of "in employment".  In addition it was not necessary to read the DDA so as to cover volunteers in light of the Equal Treatment Directive.  It was clear from the legislative history of the Framework Directive that it was not intended that it should encompass voluntary work. 

The decision in this case turned on the fact that X was found not to have a contract.  It may not therefore apply to all volunteers – those with contracts may be still be able to bring discrimination claims.  The decision applies equally to claims under the Equality Act and to all discrimination strands, not just disability.