Are volunteers covered by disability discrimination laws?

It is illegal under the Equality Act 2010 (EqA 2010) – which replaced the Disability Discrimination Act 2005 – to treat employees in England and Wales less favourably than other employees on account of their disability.

A volunteer is an individual who undertakes certain tasks on behalf of a specific body without seeking any payment for this task. This is most common in the charitable sector.
A volunteer should be distinguished from other individuals who undertake certain tasks without the requirement of payment, such as young people on internships.

In X v Mid Sussex Citizens Advice Bureau (2012) the claimant tried to argue that she was subjected to disability discrimination when she was asked to stop volunteering for the Citizens Advice Bureau.

However, the Supreme Court held that, apart from some limited exceptions (see below), both UK law and the European Framework Employment Directive only provides discrimination protection for workers and employees and not for volunteers.

The court rejected the claimant’s argument that the directive covered part-time unpaid volunteers whose activities are a sufficiently significant or important part of the ‘employer’s’ function. It ruled instead that that ‘occupation’ in the Directive refers to being capable of becoming a solicitor or a plumber for example, rather than getting a post with a particular employer.

Even a paid ‘volunteer’ is not always covered as an employee under EqA 2010, as outlined in Breakell v Shropshire Army Cadet Force (2011) where there was no legal obligation to do or provide work and payment was due only if the person worked.

Although many organisations rely on the work of volunteers and would not be able to operate without them it may not be a desirable position to enable them to make claims against the organisation. This is due to the vast turnover of volunteers that it may be extremely difficult for an organisation to make concession for certain volunteers.

However, where a volunteer continually works for a charitable organization, the organisation may think that it is a desirable position to put some arrangements in place for that individual.

Volunteers will be provided with protection under EqA 2010 where:

• an individual has a legal contract to carry out work. In this scenario they will fall within the definition of someone who contracts personally to do work for the purpose of UK law. This will apply regardless of whether the contract is an employment contract and whether the individual is paid for the work they do;
• where the person is under a work placement – this will defined as practical work experience undertaken for the purposes of a person’s vocational training, ie, like an internship;
• they are special constables (EqA 2010, ss 42-43) or public officers (EqA 2010, ss 50-52).
• an organisation uses volunteering as a way to assess a particular individual’s suitability to become an employee in that environment (EqA 2010, s 39);

Volunteers may also be covered by the provisions on ‘Associations’ in Part 7 of EqA 2010 if they are volunteering as a member of an association.