Volunteers and the law - X v Mid Sussex CAB

27/04/2011

By Nick Hobden, Partner and Head of Employment

One of the members of the Employment team, James Willis, was recently invited to speak to a network of charitable organisations regarding the law relating to volunteers. The invitation was very timely, coming a matter of weeks after the Court of Appeal's decision in the interesting case of X v Mid Sussex Citizens Advice Bureau.

The facts

X volunteered to work for the CAB as an advisor. Having gone through a period of training, she tended to work for the CAB for about 4 to 5 hours a week. X was not obliged to work any particular hours and frequently failed to attend on days when she was otherwise expected. For reasons unknown, the CAB decided to terminate the arrangement under which X volunteered for the CAB. In response, X brought a claim, alleging that the manner in which her services had been dispensed with amounted to disability discrimination.

The decision

To qualify for protection under the Disability Discrimination Act 1995 (DDA), X needed to show that she was employed under a contract of employment or apprenticeship or a contract personally to do work. But it was argued before the Court of Appeal that X was not engaged under any sort of contract at all. The "volunteer agreement" that she had signed said that it was "binding in honour only…and not a contract of employment or legally binding". The Court of Appeal found that this was right. There was no binding contract between X and the CAB; X was not obliged to work for the CAB, as she proved by frequently failing to turn up!

X tried to argue that the European Directive, on which our domestic discrimination legislation is based, afforded her protection. But, again, the Court of Appeal disagreed. The three judges were far from convinced that either the European legislature or our own parliament had intended to protect volunteers. So whilst they felt that there might be a debate to be had about this matter, as things stand, X could not rely upon the DDA for protection.

Comment

Of course the DDA has now been subsumed within the Equality Act 2011. But all the signs suggest that the decision would be the same under the new act. Genuine volunteers enjoy little (if any) protection under the law, should they feel that they have been unfairly treated. If, however, you use volunteers within your business (whether because you are a charity, have unpaid interns or otherwise), it is still very important to make sure that you regulate your relationships carefully. Getting it wrong could mean that someone becomes less of a volunteer and more of an employee or a worker. You could then find that they enjoy important rights which, if breached, could result in significant penalties.

If you are using unpaid workers of any description and have not considered the legal implications of doing so, then contact a member of the team for further advice.