The EAT has held, in the case of Breakell v Shropshire Army Cadet Force, that a paid volunteer did not have a "contract personally to do work" and therefore was not covered by the Disability Discrimination Act 1995 (DDA 1995).  Mutuality of obligation will not necessarily be established just because a volunteer is required to provide services whilst at work, and can expect to be paid in return.

Mr Breakell was an Adult Instructor (AI) in the Army Cadet Force.  The AI's Terms of Service provided that AI's "may" be paid for their attendance, but not normally for more than 28 days per year.  They could however be asked to attend on more than 28 days.  There was no obligation on the Cadet Force to offer work, and no obligation for an AI to accept.  In practice, AIs were provided with a list of available training days and asked to indicate which of them they were able to attend. On the days they attended, they were obliged to follow the instructions of superior officers.  Mr Breakell tried to argue that, as he was obliged to turn up on the days he had agreed to attend, and the Cadet Force was obliged to pay him, this created mutuality of obligation, thus rendering him an employee under the DDA 1995.
The EAT held that the definition of employment under discrimination law did not require there to be mutuality of obligation to offer and accept work. The test is whether there was a "contract personally to do work".  Because there was no obligation on Mr Breakell to work, there was therefore no "contract personally to do work" and so he could not be an employee for the purposes of a claim under the DDA 1995.  Although the EAT's decision regarding the requirement for mutuality of obligation is a little confusing, it seems that the deciding factor in this case was that to establish "employment" under the DDA 1995, there must at the very least be some form of contractual obligation on the individual to do work, and that this obligation was missing in this case.

Impact on employers

  • This decision, the latest in a run of recent cases considering the employment status of volunteers under discrimination law, will be welcome news for charities and other bodies who regularly rely upon the work of volunteers.  Although the decision relates to the DDA 1995, it would equally apply to the Equality Act 2010.
  • Even if volunteers are paid some form of remuneration (i.e. an allowance, or compensation for loss of wages on the days they volunteer), this will not necessarily bring them within the remit of discrimination law.  What is important is whether or not they are under a contractual obligation to carry out work.  If there is no contractual obligation on them to carry out work, the volunteer will lack the necessary status for protection under discrimination law.

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