Analysis: Are volunteers entitled to any workplace rights?

After a ruling by three judges that a disabled volunteer is not covered by employment law, Sophie Hudson looks at the implications for the sector

Court of Appeal
Court of Appeal

There were sighs of relief around the voluntary sector when three Court of Appeal judges ruled last month that a disabled woman who was asked to stop volunteering at the mid-Sussex Citizens Advice Bureau was not covered by anti-discrimination law.

The judges decided that because she did not have a contract of employment and was not paid, she did not qualify for protection under the Disability Discrimination Act 1995 and the associated European Framework Directive on equal treatment in employment.

The decision was welcomed not only by Citizens Advice, but also by Volunteering England, the Association of Volunteer Managers and some lawyers and volunteering experts. If the appeal had been allowed, they argued, it would potentially have created a huge financial burden for many charities and deterred them from taking on volunteers.

But the appeal court decision is not likely to be the end of the matter. The appellant, referred to as X, is supported by the Equality and Human Rights Commission and has applied for leave to appeal to the Supreme Court, a move that could in turn lead to an appeal to the European Court of Justice.

Definitive ruling

The EHRC laid emphasis during the appeal on the way people who volunteer at CABs sometimes go on to be employed there. John Wadham, group legal director at the EHRC, says: "Being discriminated against won't just affect them as volunteers - it will affect their ability to get a paid job. I can't see how that would be right." He argues that a definitive ruling on whether the European directive applies to volunteers can come only from the European court.

But even if leave is denied and the case goes no further - and some lawyers are suggesting that this is likely - the decision still leaves the sector with nagging questions about the legitimate expectations of hundreds of thousands of volunteers that they should not be treated unfairly.

Even Paul Michell, the barrister who successfully represented the CAB, recognises that the outcome does not leave a satisfactory state of affairs. "If volunteers are not protected under employment and occupation directives, then how are they protected?" he said after the case. "That is the next question."

To find an answer to this question, Volunteering England last year launched its Volunteer Rights Inquiry, which is due to report next month.

Its interim report last summer quoted many claims of injustice and mentioned the idea of a volunteer complaints commissioner, but stopped short of endorsing any particular solution.

Barriers to volunteering

Rob Jackson, director of development and innovation at VE, said it was pleased with the Court of Appeal's decision. "We don't think volunteering is the same as paid work," he says. "Making it so would create another set of problems. It would put up barriers to volunteering when we're trying to encourage more of it."

Kate Bowgett, one of the directors of the Association of Volunteer Managers, also thinks the appeal court got it right. Volunteers "don't exist legally", she says, but it would be hard to legislate for an activity that varies so much and greater clarity would make things more difficult.

Mark Restall, a consultant on volunteer management and author of Volunteers and the Law, agrees with Bowgett. "A few years ago I would have said volunteers needed a better defined status," he says. "But now I feel that the status quo is better.

"At the moment it's based on mutual trust, and any legal changes would risk making it something different - almost a sub-category of employment."

Restall also cautions against anything that might look to an employment tribunal like a contract or a form of payment.

"They will look at whether something of value has been offered or exchanged," he says. "This can be anything over and above direct reimbursement for expenses."

Volunteer perks

He says that even giving volunteers a flat rate to cover potential expenses or offering them perks such as discounts at a charity shop could be seen as payment.

"The problem is that we don't know for sure about lots of issues, but we only ever do when it comes up in a tribunal case, and there's only been a small number of them," he says.

The appellant in the CAB case in the appeal court did not have a contract with the CAB, but she had been given a volunteer agreement. This was described in court as "binding in honour only ... and not a contract of employment or legally binding".

Victoria Willson, a solicitor at Levenes Employment, which specialises in the third sector, says that such a document or a letter can be helpful. "It should say that they are a volunteer, she says. "It shouldn't be too prescriptive, though. Make it clear that the arrangements do not impose any obligations to do the volunteering and avoid using employment law terminology - for example, 'disciplinary' and 'grievances'."

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