The Employment Appeal Tribunal (EAT) has decided in the recent case of X v Mid-Sussex Citizens Advice Bureau that a voluntary worker, who did not have an employment contract, was not entitled to protection under the Disability Discrimination Act (DDA).

X volunteered to work for the Citizens Advice Bureau (CAB) for 4-5 hours per week. She entered into a volunteer agreement which was described as; '....binding in honour only ... and not a contract of employment or legally binding'.
X was under no obligation to provide services to the CAB, and in fact did not turn up to 25% of the advice sessions which she was due to attend (the CAB did not object to this).

The Employment Appeal Tribunal confirmed that X was not entitled to protection under the DDA as:

  1. X had not been 'in employment' for the purposes of the DDA (reasoning that there was no legally binding contract between X and the CAB, and that X was not obliged to provide her services to the CAB); and
  2. X's volunteering arrangements were not; '...for the purposes of determining to whom employment should be offered' (which would have resulted in those arrangements, and their termination, being subject to the DDA) as volunteering for CAB work did not automatically lead to employment by the CAB; volunteers were not given preferential treatment if they applied for paid work.

In considering whether voluntary arrangements are subject to the DDA, it is essential to consider the purpose of those arrangements, rather than their possible consequences. For instance, participation in a pre-employment training programme could well be subject to the DDA if the completion of that training is a necessary step prior to being offered employment with an organisation.

The reasoning of the EAT will apply to all strands of discrimination legislation, not just the DDA. It is also clear that, whilst this employee was not protected by the legislation, some volunteers will be. This will largely depend on whether their arrangements with the organisation mean that they can be treated as an employee or, alternatively, whether those arrangements are a necessary step to employment (as considered above). A volunteer is unlikely to be treated as an employee where there genuinely is no obligation upon the volunteer to work for the organisation (as in the current case). However, a risk would arise where, for instance, an individual was reprimanded for missing a series of shifts. Organisations engaging volunteers should be careful to ensure that such engagements do not expose them to the discrimination legislation where this could be avoided.

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.