UK: Help Or Hindrance? Can Charity Volunteers Bring Discrimination Claims?

Charities will welcome the decision of the Supreme Court that discrimination laws do not cover volunteers.  In the case of X v Mid-Sussex Citizens Advice Bureau, Ms X alleged that she had been discriminated against because of her disability. She said that this discrimination was against European Law and argued that her voluntary work constituted an "occupation" and that, therefore, she was covered by the legislation. 

A recent survey commissioned National Council for Voluntary Organisations showed that 19.8 million adults formally volunteer at least once a year. Many charities could not survive without that support and therefore it is very significant to them that they can accept offers of help without fear of legal claims being brought under discrimination laws, or of having to incur associated additional costs.

The case of X v Mid-Sussex Citizens Advice Bureau was brought under the Disability Discrimination Act 1995 and under European Law under the Equal Treatment Framework Directive (2000/78/EC). Although the DDA has now been replaced by the Equality Act 2010, the relevant wording is essentially the same under both pieces of legislation. Protection is given to people who are "employed" and also to those undertaking vocational training. For these purposes, "employment" means employment under a contract of employment, a contract of apprenticeship or a contract personally to do work. Ms X suggested that her volunteer work fell within those definitions.

The decision of the Supreme Court was that Ms X did not have protection under the Disability Discrimination Act, as she did not fall within the definition of "employment". Firstly, it was determined that she had no contract with the CAB. Secondly, her work was not vocational training; although she may have developed her skills during her volunteer work, that was not the sole or dominant purpose, it was simply a by-product. Finally, the Court was clear that the Framework Directive was not intended to encompass voluntary work; there is no reference to volunteer work in the Directive and there has never been any suggestion that the UK has not implemented the Directive correctly by failing to offer protection to volunteers.

What does this mean for employers?

The reaffirmation of the position that volunteers are not covered by discrimination laws is good news for charities and other voluntary sector organisations. However it should be noted that, although this particular claim failed, it was also recognised by the Court that there are many forms of volunteer arrangement and that some could potentially have protection.

The key issue will be whether or not an individual has a contract with the organisation. Those with contracts will be covered by discrimination law, while those without a contract will not. Whether or nor someone has a contract is not simply a question of having a written agreement, as contracts can be written, verbal or implied. Therefore the issue will be determined on how the arrangement works in practice.

There are four basic elements of a legally binding contract: offer, acceptance, consideration (usually in the form of a payment) and an intention to create legal relations. In a genuine volunteer arrangement, there will normally be a lack of consideration, as the work is unpaid other than the reimbursement of expenses. Of equal importance will be the intention to create legal relations. If a volunteer is entirely free to offer or withdraw their support as they wish and the organisation is likewise at liberty to accept or decline offers of help, without any binding obligation on either side, such an arrangement will not amount to a contract. It is perfectly acceptable to have expectations on either side, and indeed most volunteer arrangements would be unworkable otherwise, but organisations must take care that expectations do not become obligations.

Steps that a charity might take to reduce the risk of creating a legally binding contract with volunteers will include: 

• Avoid making payments to volunteers that might be deemed to be wages.
• Ensure that expenses claimed are only paid if backed up by receipts.
• In volunteer agreements give the ability to refuse work and a choice of when work is done.
• Use wording which points to an "expectation", such as "suggest" or "usual" rather than those which imply obligation, such as "required".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.