· 3 min read · Features

Should volunteers be protected from discrimination under European law?

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At present, any employee or worker working anywhere in the European Union is entitled to work without being discriminated against in relation to certain ‘protected characteristics’. Those protected characteristics include (amongst others) disability, gender, age and race. This principle of equality is enshrined under European law in the European Directive on Equal Treatment in Employment and Occupation.

Until recently, it had not been contemplated that unpaid, voluntary workers would be covered by discrimination protection afforded by this EU equality legislation. However, in the case of X v Mid Sussex Citizens Advice Bureau which was heard in the Supreme Court earlier this month, it was argued that volunteers should also enjoy protection from discrimination under European law in certain situations. The Employment Tribunal, Employment Appeal Tribunal and Court of Appeal had all previously ruled that volunteers were not entitled to such protection.

New rights for voluntary workers? X v Mid Sussex Citizens Advice Bureau

Mrs X was an unpaid legal adviser working at the Citizens Advice Bureau (CAB), giving advice on welfare law. She was unpaid and did not have a formal contract with the CAB. Instead, as is common practice with volunteer workers, she was engaged under a Volunteer Agreement which was worded in aspirational terms. Mrs X had a law degree, had completed her legal practice course and was working at the CAB with a view to obtaining a training contract to complete the vocational stage of her legal training to qualify as a solicitor. Mrs X was subsequently dismissed from her role at the CAB after being diagnosed with HIV.

If Mrs X had been an employee working under a contract of employment with the CAB, she would have been able to bring a claim for compensation on the grounds of disability-related discrimination. That claim could then have been determined in the Employment Tribunal, on its own facts and merits. This is because protection from discrimination under European legislation is afforded to people who are in employment or in an occupation. It was argued in the Supreme Court on behalf of Mrs X that her work with the CAB was an 'occupation', notwithstanding the fact that she was unpaid. However, UK law does not afford protection to unpaid voluntary workers under any circumstances and so Mrs X's appeal to the Supreme Court was essentially that the relevant European legislation has not been properly interpreted in this country.

The Supreme Court's Judgment is currently awaited, but it is quite possible that the issue will be referred to the European Court of Justice, to adjudicate on the scope of the European Directive on Equal Treatment. The potential impact of a positive ruling in Mrs X's favour (either by the Supreme Court, or via a successful reference to the ECJ) could affect several million voluntary workers in the UK and up to another 100 million across the European Union.

Impact on voluntary workers

Legal protection against discrimination for voluntary workers could have profound implications for the entire voluntary sector. The ruling could award protection to those voluntary workers who are in an occupation, and who face any form of unlawful discrimination. Since any ruling by the ECJ will affect discrimination laws across all European Union member states, including the UK, the potential impact of this case reaches across the whole of Europe.

Potentially anybody working in a voluntary, or unpaid, capacity in an organisation - including work experience placements, internships and the practice of returning unemployed people to work - could benefit from these new discrimination rights.

The Equality and Human Rights Commission, which took part in the case as an impartial intervener, argued that with the importance placed on unpaid workers in the current economy, it would be improper not to extend discrimination protection to voluntary workers. Within the CAB itself, there are at present approximately 28,000 legal advisers, of which the vast majority (roughly 21,000) are unpaid. For professions which are increasingly competitive to access - such as legal, accountancy and medical - it is important for potential applicants to work gain work experience (which is often unpaid) to improve their chances of securing future (paid) employment. A positive ruling by the Supreme Court or the ECJ could provide protection against discrimination for those participating in unpaid work such as this across the EU.

However, if it is decided that voluntary workers are capable of being in an occupation (and therefore protected by the European Directive on Equal Treatment), the scope of such protection will need to be determined by the national courts in future. The question as to where the boundary lies for discrimination protection would need to be defined, but is likely to be decided on a case by case basis. Therefore even if Mrs X is successful in her appeal to the Supreme Court, that won't be the end of the story.

Andy Williams (pictured) is a Senior Associate at Charles Russell LLP, who is representing Mrs X in this case