X v Mid Sussex Citizens Advice Bureau and another [2012] UKSC 59

In brief

Supreme Court (Lord Mance, with whom Lord Neuberger, Lord Walker, Lady Hale and Lord Wilson agree), 12 December 2012. A volunteer adviser at a Citizens Advice Bureau, engaged under a volunteer agreement expressed to be binding in honour only, claimed disability discrimination when asked to cease volunteering. The Employment Tribunal found no legally binding contract and that was no longer disputed [2]. The domestic definition of employment (DDA 1995 s.68(1): a contract of service, of apprenticeship or personally to do work) placed her outside the Act [9]–[10]; the tribunals and the Court of Appeal held there was no jurisdiction [5]. The appellant and the Equality and Human Rights Commission argued that occupation in article 3(1)(a) of the Framework Directive reached voluntary activity. Held: occupation contemplates access to a sector of the market, not voluntary activity [30]; eight reasons at [24]–[43], including that a multi-factorial test would produce uncertainty and that the Directive gave no indication where a line would fall [43]; the Framework Directive does not cover voluntary activity [45], and there was no scope for reasonable doubt [48]; no reference to the Court of Justice [57]. (The words "The provision relating to access does not on its face cover volunteers" at [53] describe a Belgian anti-discrimination law of 2003 quoted at [52], not the Directive or the 1995 Act.) Disposal: appeal dismissed — leaving aside guidance, training and work experience under article 3(1)(b), article 3 is not directed to voluntary activity [57]. Toolkit posture: the authority that a volunteer without a contract was outside the 1995 Act [10] and the Framework Directive [45], [57]; the toolkit's inference, not decided here, is that the same applies under EA2010 Part 5 (s.83(2)). Also toolkit analysis, not in the judgment: an organisation's obligations to volunteers then rest on its own policies, its safeguarding and regulatory duties and, where the facts fit, Part 3 (services) or Part 7 (associations) — the toolkit treats a volunteer policy as a values-and-process question, not an employment claim. The case concerned disability; the toolkit applies the same boundary to every protected characteristic, including gender reassignment, which the judgment does not mention. Decision-support, not legal advice.

Key provisions

• §2 — No contract — the volunteer agreement was binding in honour only : [2] "The Employment Tribunal concluded that no legally binding contract came into existence, and the contrary is no longer suggested."
• §9–10 — Statutory employment requires a contract personally to do work : [9] s.68(1) defines employment as "employment under a contract of service or of apprenticeship or a contract personally to do any work"; [10] since the appellant did not have a contract, she does not on the face of it fall within the scope of the 1995 Act.
• §5 — The jurisdictional holding below : [5] the tribunals and the Court of Appeal held she was, as a volunteer, "outside the scope of the protection against discrimination on the grounds of disability intended to be provided under" the 1995 Act and the Framework Directive.
• §30 — Occupation in the Framework Directive means access to a sector of the market : [30] the reference to access to occupation contemplates "access to a sector of the market, rather than to particular employment or self-employment"; it does not envisage voluntary activity.
• §43 — A multi-factorial volunteer test rejected : [43] "A multi-factorial test would lead to uncertainty and disputes, and, had some but not all voluntary activity been intended to be covered, the Directive would surely have given some indication as to where the line should be drawn."
• §45 — The Framework Directive does not cover voluntary activity : [45] "All these considerations, and particularly the first seven, combine in my opinion to lead to a conclusion that the Framework Directive does not cover voluntary activity." The sentence "The provision relating to access does not on its face cover volunteers" at [53] is said of a Belgian anti-discrimination law of 25 February 2003, quoted at [52], in the discussion of whether to refer to the Court of Justice; it is not said of the Directive or the 1995 Act.
• §57 — Disposal — appeal dismissed; no reference to the Court of Justice : [57] "I would dismiss this appeal from the concurrent decisions below" on the ground that article 3 is not directed to voluntary activity.

When relevant

Any policy, complaint or stress-test involving volunteers, trustees, unpaid interns or other unpaid roles where the question is whether the EA2010 employment protections (Part 5) apply: this is the authority that a volunteer without a contract personally to do work was outside the 1995 Act and the Framework Directive [10], [45], [57] (the Court noted that an intern might fall within article 3(1)(b) [20], and that some office-holders without contract or pay were covered domestically [10], [56]; trustees are not mentioned). Toolkit routing, not from the judgment: use it to route the question correctly — to the organisation's own volunteer policy, safeguarding and regulatory duties, and (where the facts fit) Part 3 services or Part 7 associations — rather than to an employment claim. Population scope: this record decides that a volunteer without a contract was outside the 1995 Act and the Framework Directive, leaving aside article 3(1)(b) [57], office-holders [10], [56] and the Marleasing and Mangold questions [58]; JIVRAJ-UKSC-2011 settles the independent-provider boundary; worker-status case law (Uber, Pimlico Plumbers) is not held — verify on cite.