Citation:  UKSC 59 (Supreme Court of the United Kingdom, Lord Neuberger, Lord Walker, Lady Hale, Lord Mance, Lord Wilson)
Acknowledgement:The Pemsel Case Foundation thanks The Australian Centre for Philanthropy and Nonprofit Studies for its contribution in the drafting of this Case Note.
This was an appeal to the UK’s highest court in a disability discrimination case. The issue was whether, under European and UK domestic law, discrimination against volunteers on the ground of disability was unlawful. It was held that it was not unlawful under the current applicable law.
The appellant was a volunteer adviser for the respondent, the Mid-Sussex Citizens’ Advice Bureau (CAB). She had no binding legal contract of employment (or indeed contract of any kind) between her and the CAB. Rather she had signed a volunteer agreement which indicated that it was ‘binding in honour only’.
However, the appellant was a qualified lawyer, and in her volunteer work did quite detailed legal work such as writing submissions and case notes, undertaking specialist research, writing letters to third parties and giving legal advice to CAB clients.
The appellant was supposed to volunteer on Tuesdays, Thursdays and Fridays, but because of health problems did not always attend on her allocated days, and sometimes changed days. In all, she was absent about 25% to 30% of the allocated times, and attended between one and three days a week.
On 21 May 2007, the applicant was asked by the CAB to cease being a volunteer in circumstances that she claimed amounted to discrimination against her on the ground of disability. Her case before the Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal resulted in the finding that, as a volunteer, she was outside the scope of protection against discrimination on the ground of disability under both the Disability Discrimination Act 1995 (UK) (the 1995 Act) and the European Union (EU) Council Directive 2000/78/EC. The latter document, referred to as the ‘Framework Directive’, established a general framework for equal treatment in employment and occupation within the EU.
The Supreme Court exhaustively examined the relevant legislation and EU documentation, but could find no assistance for the appellant in any of the material she proposed in her support. Section 4(2)(d) of the Act provided that it was unlawful for an employer to discriminate against a disabled person by dismissing the person or subjecting him/her to any other detriment. Section 68(1) defined ‘employment’ to mean ‘…employment…under a contract of service or of apprenticeship or a contract personally to do any work…’.
The Supreme Court agreed with the Employment Tribunal and the Employment Appeals Tribunal that the appellant did not have a contract of work, so she could not fall within the provisions of the 1995 Act. In 2003, the 1995 Act was amended to give effect to the Framework Directive. One of the added sections was section 4D, covering certain categories of office-holders, some of whom would not have contracts or remuneration. The Court stated firmly that the appellant did not fall into this category either (at ).
The Court then turned to a consideration of the appellant’s case under the Framework Directive itself. The appellant claimed that volunteers were covered under the Framework Directive because of the inclusion of the word ‘or occupation’ in the wording of the relevant parts of the document. The appellant’s case was that the Framework Directive’s references to ‘occupation’, particularly in Article 3(1)(a) was such as to cover her voluntary activity with the CAB.
Alternatively, she said that the general principle of equality contained in Article 13(1) of the Treaty establishing the European Community (TEC) (now replaced by Article 19(1) of the Treaty on the Functioning of the European Union (TFEU)), taken in combination with the Framework Directive, gave her a direct claim. Article 13(1) TEC and Article 19(1) TFEU are in similar terms and refer to ‘acting unanimously… to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’.
The Framework Directive commences with recitals, including recital (4) which refers to ‘Convention No 111 of the International Labour Organisation (ILO) [which] prohibits discrimination in the field of employment and occupation’ [emphasis added here and subsequently]. After the various recitals, the Framework Directive provides in Article 1 that its purpose is to combat discrimination on multiple grounds including disability ‘as regards employment and occupation’. Article 3(1) says that the ‘…Directive shall apply to all persons, as regards both the public and private sectors including public bodies, in relation to: (a) conditions for access to employment, to self-employment or to occupation…’.
The Court noted that there was no single definition of ‘worker’ under European law. Cases in the European Court of Justice (ECJ) (the Court to which cases under EU law are taken) on the issue had said that the concept of ‘worker’ had a Community meaning and was not to be interpreted restrictively. However, the general thrust of the cases was that a worker is a person who performs services under the direction of another person and receives remuneration in return. Self-employment was also referred to as the rendering of services for remuneration.
However, ‘occupation’ had not been examined under European law in any context. Was the appellant engaged in an ‘occupation’? The Court said (at ):
‘Occupation’ is a protean word, which can, depending on context, cover a wide variety of activities associated with work or leisure. Volunteers also come in many forms, including the cheerful guide at the London Olympics, the charity shop attendant, the intern hoping to learn and impress and the present appellant who provided specialist legal services. The intern might well fall within article 3(1)(b), but, for like reasons to those which I have pointed out in para 8 above [why she was not covered by section 4(1)(a) of the Disability Discrimination Act], the appellant did not. Hence, her invocation of article 3(1)(a).
The appellant and the [UK] Equality and Human Rights Commission (EHRC) (intervening) argued for a multi-factorial assessment of the issue. They submitted that the factors pointing to a conclusion that the appellant had or was in an ‘occupation’ included:
· the training requirements she had undertaken;
· the regulation of her activity by the non-binding agreement and its general supervision by the CAB;
· her expertise as a lawyer;
· the purpose of her activity (to give free high quality legal advice) and its key role in the operations of the CAB;
· the number of hours and days she gave;
· the potential advantages of her activity in equipping her for remunerative employment and the fact that she was providing her services alongside and, save for her unremunerated volunteer status, in large measure indistinguishably from others who were providing services on an employed basis.
The Court said that the Framework Directive did not cover all activities. Rather, its scope was carefully confined, and did not embrace voluntary activities. The references to the word ‘occupation’ had to be viewed in context. The context in Article 3(1)(a) of the Framework Directive was that of access to the market for employment, including self-employment. This was an ‘umbrella’ concept, as was the reference to ‘occupational’ in the recitals to the Directive. On this point, the Court said (at ):
Once the word ‘occupation’ is understood in this sense, there is no imperative, and it would indeed be contradictory, to treat the concept of ‘occupation’ as operating at the same level as ‘employment’ and ‘self-employment’, or as envisaging voluntary activity.
The appellant and the EHRC submitted that it was not enough to consider only the English version of the Framework Directive. Other authoritative language versions should also be considered. The Court looked at the versions in French, Spanish, German, and Dutch. The French version used the term ‘ou travail’ for occupation which the Court said did not ‘in any way’ suggest that voluntary activity was to be covered (at ). Indeed, the French version equated ‘travail’ with ‘profession’ in its explanatory document. The same conclusion could be drawn from the Spanish version where occupation was equated with profession (y al ejercicio professional) and the Dutch version: professional activity (en tot een bereop). The German version (beruflicher Position) made clear that voluntary activity was not contemplated in the coverage of Article 3(1)(a).
The Court held that several other points could be made in support of the position that voluntary activity was not covered by the Framework Directive:
· There was no attempt in any part of Article 3 to use the term ‘occupation’ to refer to voluntary activity, as would be expected for consistency if it had that meaning in Article 3(1)(a);
- The term ‘employment and occupation’ is used consistently in both the title and recitals of the Framework Directive;
- The reference to the ILO convention in recital 4 was also consistent with ‘employment and occupation’ being terms meaning paid activity (except for the mention of ‘unpaid family worker’ in the latest ILO commentary on the convention, but this is a specific, very limited, extension to unpaid workers, where there is a clear intention not to embrace volunteers generally);
- The original proposal and impact assessment for the Framework Directive were ‘focused exclusively on situations of employment or self-employment and did not consider… voluntary activity in any shape or form’ (at );
- The European Parliament had proposed amendments to Framework Directive Article 3(1)(a) which would have included ‘unpaid and voluntary work’ but these had not proceeded when the proposals were forwarded to the European Union Council (which issues Directives);
- It had never been suggested by the European Commission that the United Kingdom or any other member state of the EU had not properly implemented the Framework Directive by failing to include voluntary activity in their respective coverage against discrimination;
· Persons in remunerated work and volunteers are not in comparable positions, ‘and it would contradict the European Union legislature’s intention to treat the Directive as intended to cover volunteers’ (at ).
For these reasons, the Supreme Court held that the Framework Directive did not cover voluntary activity. Since the appellant was not covered by either domestic legislation or the EU Framework Directive, her appeal failed.
A request for a reference to the European Court of Justice for a ruling on the matter was denied on the basis that there was no reasonable doubt about the conclusion reached by the Supreme Court.
The case may be viewed at: http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2011_0112_Judgment.pdf
Implications of this case
This was an important decision relating to volunteers in the UK. The CAB’s case was supported by interventions from the Association of Chief Executives of Voluntary Organisations (ACEVO), Groundwork UK and Volunteering England. Their position was that a finding that volunteers were covered by disability discrimination legislation or EU Directives would undermine the nature of volunteering, create practical barriers and additional costs for charities and other nonprofits and result in a formalisation which they asserted was unwanted by most volunteers.
The unanimous judgement, written by Lord Mance, concluded somewhat wistfully with the point that (at –):
…I would dismiss this appeal from the concurrent decisions below on the ground that, leaving aside the subject matter of guidance, training and work experience covered by article 3(1)(b) [he had earlier made the point that unpaid interns might be covered], article 3 is not directed to voluntary activity.
It is in these circumstances unnecessary to go into the interesting questions which would have arisen, had I concluded that article 3(1) did generally cover voluntary activity. Assuming (without expressing any view) that the principle in [Marleasing SA v La Comercial Internacional de Alimentación SA (Case C-106/89)  ECR I-4135] would not have assisted the appellant, because of the unequivocal stance taken by Parliament in section 68 of the Disability Discrimination Act 1995 [in which work under a contract of service is covered], the question would still have arisen whether the principle in [Mangold v Helm (Case C-144/04)  ECR I-9981] [the general principle of equality, contained in the TEC and TFEU] might not have been extended to protect the appellant…. That question might well have required to be referred to the Court of Justice. That need does not however, in the event, arise.