Supreme Court decision could prove blow to volunteer rights

A SUPREME Court ruling could have a damaging impact on the rights of volunteers across the UK, according to a senior Yorkshire lawyer.

However, lawyers have also claimed that the ruling could reduce charities’ red tape burden, at a time when many are struggling.

The judgement was handed down in ‘X v Mid Sussex Citizens Advice Bureau and another’. Ms X, a volunteer adviser at the Citizens Advice Bureau, believed that she was asked to stop volunteering following the disclosure that she was HIV positive. After leaving her position in May 2007, she brought forward a claim under the Disability Discrimination Act (DDA).

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The case aimed to determine whether the Framework Directive, in place to ensure equal treatment of employees, applied to Ms X. Ms X’s argument rested on the fact that the DDA’s, and the more recent Equality Act’s, definition of employment should be read consistently with the Framework Directive, which “prohibits discrimination in the field of employment and occupation”.

She felt her voluntary role was an occupation and could be classed as employment, entitling her to protection from discrimination. However, having signed a volunteer agreement which was not legally binding, the court found that Ms X had no domestic protection from disability discrimination.

Alan Chalmers, a partner in DLA Piper’s employment team in Sheffield, said: “While offering welcome clarification to employers, the Supreme Court’s judgement sends a very clear message which will be disappointing for volunteers hoping for the same protection that might be given to any contracted employees they work alongside.

“As a result of the decision, the opportunities provided by volunteers can be lawfully denied to them for reasons relating to their disability status, as well as any other ‘protected characteristic’ such as age, race or sex. Only those with a legal contract, or those who are undertaking formal ‘work experience’, will be protected.”

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Louise Connacher, a director in Lupton Fawcett Lee & Priestley’s employment law department, said: “If the decision had gone the other way, charities would have had to adopt formal procedures to deal with allegations of discrimination from volunteers and would also face the legal costs of fighting discrimination claims in employment tribunals.

“All this would increase the costs of delivering their services at a time of economic hardship. Crucially, such a change would also have led to an unwelcome legal formalisation of the volunteering relationship, from being a genuine enthusiastic donation of time and goodwill. Such a change would not sit well with the Government’s encouragement of volunteering through its Big Society initiative, which wants the public to step in and fill the gaps left by cuts in services or increases in need.”

Emma Atkins, an employment solicitor at Denison Till in York, said: “While somewhat controversial, this judgement is likely to be welcomed by charities and other voluntary sector organisations, not least because it provides some clarity in a difficult area of law.”

Tracey Marsden, from Nabarro in Sheffield, stressed that, as a matter of good practice, employers should always adopt non-discriminatory work practices.