Organisations which rely on volunteering will no doubt be relieved that the Supreme Court has recently held that people who are not in a contractual relationship with the body they volunteer for are not in “employment” for the purposes of bringing a discrimination claim.
The Court also rejected the argument that the term “occupation” in European law covers volunteers. The result was that the volunteer legal advisor in X v Mid-Sussex Citizens Advice Bureau could not get her disability complaint off the ground as the Employment Tribunal did not have any power to hear it.
The same ruling would have applied to the other eight characteristics to which the principle of non discrimination applies, including sex, race and age.
Most charities have policies covering volunteers, including equal opportunities, and aim to treat volunteers fairly (incidentally, it was never established that the CAB had actually discriminated in the above case )but a decision giving volunteers enhanced rights would have laid a significant additional burden upon them.
This is why various charitable bodies including Volunteering England and the Association of Chief Executives of Voluntary Organisations (ACEVO) sided with the CAB.
It is perhaps easy to see why Mrs X thought she was potentially in “employment” and therefore protected. At the time of her leaving, she had been a regular volunteer at the CAB for a year, performing a very similar role to paid staff and therefore regarded herself as part and parcel of the Bureau’s operation.
A note of caution should be sounded because whilst the court rejected her case, it should not be assumed that volunteers have no protection at all from discrimination. The leading judgment was careful not to suggest that all volunteers are excluded from such protection. At the heart of the case was the conclusion that there was no legally binding contract in place.
We can provide a number of practical tips for reducing the risk of a legally binding contract. These include the following:
Avoid making payments that could be construed as wages. Payments to cover actual expenses should be clearly identified as such and reimbursed only against receipts.
Remove or at least minimise perks.
Reduce obligations on the part of the volunteer. Giving a volunteer the ability to refuse tasks and choose when to work will point away from the existence of a binding contract.
Avoid using language that makes the arrangement sound contractual and adopt flexible language such as “usual” and “suggested”.
Whilst it seems obvious, treat volunteers fairly - having a clear written procedure for dealing with problems and grievances should also reduce the likelihood of disputes occurring later when the relationship comes to an end.