Volunteers not covered under Disability Discrimination Act

In a landmark case, the Court of Appeal has ruled that a volunteer with the Citizens' Advice Bureau (CAB) was not covered by the employment provisions of the Disability Discrimination Act 1995 (DDA).

Background to the case

The claimant volunteered for four to five hours per week with the CAB and was given a volunteer agreement. This was described as "binding in honour only… and not a contract of employment or legally binding."

As part of her voluntary role, she undertook a wide range of advice work. However, on many days that she was expected she did not turn up. No objection to this was ever raised but, eventually, she was asked to stop attending as a volunteer. As a result of this she claimed she had been discriminated against under the Disability Discrimination Act 1995 by reason of her disability. She also complained that the DDA 1995 had failed to properly implement the EC Framework Directive which governs EU disability law.

The outcome of the case

The court found that for matters to have fallen within the DDA, the claimant had to fit one of the following criteria:

• have an employment contract;
• have a contract personally to do work for the CAB; or
• be a disabled person affected by the employer's arrangements for determining to whom it should offer employment.

The Court of Appeal found that the claimant did not have a legally binding contract of any description with the CAB. There was no requirement for the claimant to provide her services to the CAB and, as a result, when she frequently did not, no objection was raised. Neither was there an obligation on the CAB to do anything in return for her service.

Because no contract was found to exist, the claimant had to establish that the volunteering arrangement she had with the CAB was for the purpose of determining whether employment would be offered to her. This is the provision which is normally used by job applicants to challenge discrimination.

The Court of Appeal accepted the Employment Appeal Tribunal's original decision that this was not the case. Volunteering would not automatically lead on to a paid job or employment, and neither was unpaid training a requirement of applying for a paid job with the CAB.

As a result of these findings, it was decided that the claimant in this case was not protected under the DDA, or any other discrimination laws.

So why might this be important for you?

If you rely on volunteers within your organisation, this gives very clear guidance as to their situation under discrimination law. These conclusions also likely to apply under the Equality Act 2010, which covers a far wider range of discrimination areas. Put simply, if your volunteers operate without a formal contract then the findings of this case are likely to apply to them.

If, however, they do have a contract to work for you - even if the work is unpaid - or if their work is a part of the process of applying for employment this may well not be the case. In another recent case, a person applying as a volunteer counsellor for Relate was allowed to bring a race discrimination claim because Relate promised to provide training, supervision and support, and further development of her skills, and in return she had to commit to a minimum number of hours per week amongst other conditions. There was mutuality of obligation to lead to the conclusion that she was applying for employment, albeit unpaid.

If you have concerns or questions about working with volunteers you may benefit from a conversation with one of our employment law specialists. For more information, click on your local office to find your local Wards legal specialist.