As the UK continues to debate the difference between what is morally expedient and what is legally right in the wake of a certain US coffee shop’s tax avoidance scheme, a similar question came to the fore in employment law last month.
In the case of X v Mid Sussex Citizens Advice Bureau the Supreme Court reaffirmed the principle that in order to fall within the provisions of anti-discrimination legislation, the person must be a “worker”. Volunteers, without a contract, are not generally considered to be workers and therefore despite the worthiness of their intentions, do not qualify for protection.
Ms X was a volunteer advisor at the Citizen’s Advice Bureau. She claimed she was asked to stop acting as a volunteer in circumstances amounting to disability discrimination. The Court unanimously ruled that her claim fell outside the provisions of UK anti-discrimination legislation as her position was unpaid and no contract was signed. The Court also held that it was not the intention of the EU Framework Directive that volunteers should benefit from its protections.
For managers and accountants in the voluntary sector, this may well be a welcome decision. Often running on constricted budgets, they will breathe a sigh of relief that compensation or settlement payments arising from actual or threatened discrimination claims need not be a consideration.
The more morally-inclined among us, however, may find it hard to see past the irony that many such volunteers will be working for charities or other groups whose specific interest is protecting those of a certain race, age, sex or disability.
It is not too hard to imagine a scenario where an employee and a volunteer would work side by side in the same workplace. Charities often have paid members of staff in managerial roles that are supported by a team of unpaid volunteers. It is entirely possible they would share broadly the same responsibilities and could even work similar hours but the volunteer would not benefit from protection from discrimination. This is not carte blanche to discriminate – an employed charity manager is no less guilty of misconduct and behaviour contrary to the best interests of his employer merely because the victim of his discriminatory acts has no right of recourse beyond ceasing to volunteer.
There may be scope for volunteers to issue a discrimination claim in the County Court by relying on other provisions within the Equality Act 2012 although it is questionable that this is the appropriate forum given that the Employment Tribunals are more accustomed to dealing with discrimination claims that arise from the workplace. Discrimination so overt as to be potentially criminal in nature might also be pursued through the Protection from Harassment Act 1997, but since there will by definition be no loss of income to claim, the costs would very rarely be worth the return.
For now though, we should not hold our breath waiting for the CAB to make a voluntary payment to Ms X on the same basis as that coffee shop is making one to the UK HMRC.
