Two recent cases have confirmed that a genuine volunteer does not have the protection of the law on discrimination or unfair dismissal.
In X v Mid Sussex Citizens Advice Bureau, the claimant was a part-time unpaid volunteer with Mid Sussex Citizens Advice Bureau (CAB), working under a volunteer agreement which was expressly stated to be "binding in honour only" and not to be a contract of employment. She was asked to cease to attend the CAB as a volunteer, and brought a claim on the grounds that she was discriminated against because of her disability.
The EAT struck out her claim holding that volunteers are not protected by either the DDA or the European Framework Directive. Her position was not covered by the definition of "employment" because of the lack of a legally binding contract, nor did the prohibition on discrimination as regards "occupation" extend to cover voluntary workers. The EAT held that "occupation" refers to qualifications and professional requirements needed for access to employment or promotion. Further, the EAT held that the claimant was not a "worker" in terms of the DDA or the Directive. In the claimant's case, there were insufficient obligations on the parties to create the mutuality of obligation that is a fundamental element of an employment relationship.
The principles in the case extend to discrimination on all other grounds.
In Roberts v Salvation Army, the tribunal held that it did not have jurisdiction to hear an unfair dismissal claim from a former Salvation Army officer whose agreement with the Salvation Army specified that there was no intention to create a legally binding relationship. Captain Roberts signed an agreement which stated that he gave himself "in response to the call of God and of my own free will to the work of the Salvation Army". The agreement also provided that the parties' relationship was spiritual, not legal, no contract of service was created and the parties had a genuine intention to avoid any legal rights and obligations
Impact on employers
- These decisions will come as a relief to the many organisations that rely on volunteers (it is estimated that approximately 1.75 billion volunteer hours were worked in 2007/08 in the UK).
- However, it should be noted that the decisions are limited to volunteers without legally binding contracts.
- Volunteers who contract personally to do any work may be protected from discrimination by virtue of being workers or even employees.
- Charities and other organisations that rely on volunteers should review their current practices and documentation in relation to the use of volunteers. Two areas of concern in particular are the termination of volunteer arrangements and the preparation of relevant documentation so that the volunteer is not elevated to the protected status of worker or employee.