The Supreme Court has concluded its hearing in the Mid Sussex Citizens Advice Bureau case.

Ms X was an unpaid volunteer at Mid Sussex CAB and gave advice on welfare law. She was given a volunteer agreement which she signed on 12 May 2006 and which was described as being “binding in honour only … and not a contract of employment or legally binding”. Although volunteers often go on to become employed by the CAB as paid advisers, this is not automatic; there is an open, external recruitment process for paid posts and volunteering arrangements were not for the purpose of determining to whom employment should be offered. Ms X alleged that she was told that her services were no longer required when she made the Bureau aware that she was HIV positive. She claimed disability discrimination.

Broadly speaking, UK law employment law protects employees from discrimination on such grounds as disability, age, religion, marital status or sexual orientation – but it does not provide volunteers with protection from discrimination precisely because they are volunteers, not employees. As a preliminary issue, therefore, an Employment Tribunal held that Ms X was not within the scope of the Disability Discrimination Act’s definition of “employment” because the definition did not cover voluntary work.

Before the Court of Appeal in X v Mid Sussex Citizens Advice Bureau & Ors [2011] EWCA Civ 28  Ms X relied on the fact that there had been

“… a proposal which emanated from the European Parliament which in terms suggested that the Framework Directive should be amended to include ‘unpaid and voluntary work’ in addition to the concept of ‘occupation’. The European Commission accepted that amendment and put it into the draft which went before the Council of Ministers for adoption” (per Elias LJ at paragraph 57).

The Court of Appeal rejected the point and concluded that the Directive was not intended to apply to volunteers, primarily on two grounds:

• that it was “far from obvious that it would be thought desirable to include volunteers within the scope of the discrimination legislation relating to employment” and when the matter was specifically addressed by the European Commission and a proposed amendment was introduced to that effect, the European Council chose not to introduce it; and

• that it is inconceivable that the draftsman of the Directive would not have dealt specifically with the position of volunteers if the intention had been to include them (per Elias LJ at paragraphs 59–61).

Crucially, however, as Elias LJ pointed out at paragraph 2:

“Although this case is about disability, it is common ground that if the appellant is protected as she claims, then she and other similarly placed volunteers would also be protected from discrimination on the other grounds identified in the Framework Directive (Directive 2000/78/EEC), and on the grounds identified in the related sex and race directives (Council Directives 2006/54/EC and 2000/43/EC respectively). Between them these directives cover, in addition to discrimination on grounds of disability, discrimination on grounds of racial or ethnic origin, sex, sexual orientation, religion and belief, or age”.

In short, if the Supreme Court were to decide that Ms X had the same rights not to be discriminated against as if she were an employee, it would be the beginning of more general employment rights for volunteers.

The Equality and Human Rights Commission intervened in the case, as it did in the Court of Appeal, arguing that volunteers were protected against discrimination. John Wadham, General Counsel at the Commission is quoted as follows:

“As the Government seeks to increase volunteering in the UK, both to support its ‘Big Society” initiative and as a way of supporting economic recovery by helping people find work, it is only fair that in return, some volunteers should receive protection against unjustified discrimination. This is especially important for many disabled or older people for whom volunteering may play an essential part in helping them live independently and be included in their local community”.

Fortunately, the Supreme Court would have none of it and dismissed her appeal. In X v Mid Sussex Citizens Advice Bureau & Anor [2012] UKSC 59 Lord Mance, delivering the judgment of the Court, held that Directive 2000/78/EC ”does not cover voluntary activity” and was not prepared to refer the matter to the Court of Justice of the EU for an Opinion. Which is just as well: had Mrs X won, almost every charity in the United Kingdom would have had to start re-examining its employment and volunteering policies as a matter of urgency.

UKHRB has a detailed and wide-ranging analysis of the judgment by Rosalind English: Volunteers not entitled to protection of disability discrimination laws.