X v Mid Sussex Citizens Advice Bureau

Summary

Employment Appeal Tribunal, October 2009

Background

The claimant X was an HIV-infected part-time unpaid volunteer with Mid Sussex Citizens Advice Bureau (CAB). She was subsequently asked to cease to attend as a volunteer and appealed to the Employment Appeal Tribunal on the grounds that she was discriminated against because of her HIV status.

The Employment Tribunal (and Employment Appeal Tribunal) held that she did not have a legally binding contract, nor a 'work placement' as defined in the Disability Discrimination Act (DDA) so the DDA did not apply to her.

She took her case to the Court of Appeal arguing that her volunteer role was an 'occupation' within the European Framework Employment Directive, and should therefore be covered by the DDA.

The Court of Appeal decision

The appeal was heard as X v Mid Sussex Citizens Advice Bureau & Anor [2009] EWCA Civ 340 on 10 March 2009.

The Court of Appeal felt that the best course of action was to set aside the order of the Employment Tribunal and refer the case back to the Employment Appeal Tribunal.

"In my judgment, while I fully accept that those consequential issues may arise, and have been persuasively argued in the skeleton argument of the respondent, it is really not possible to deal with the issue of interpretation without understanding properly what is included within the issue of the term "occupation". While we have a test proffered by the appellant which is helpful, the court would have to determine whether that was the true test, in reality, before engaging on the question of whether the Disability Discrimination Act 1995 could bear the interpretation that it applied to that additional category of activity. Likewise in my judgment it seems to me it would not be necessary for this court to go on to the issue of direct effect without having looked at the question of interpretation; and in my judgment the right way to deal with this case is to take the issues in their logical order and at the appropriate tier of the judicial hierarchy.

Accordingly, in my judgment, the right course in this case would be to give permission to set aside the order of the Employment Tribunal that this issue is not arguable. I would for my part accept that it was an arguable issue on the basis of the points put forward in the skeleton argument, and I would also go on to hold that this was an issue which ought to be dealt with by the Employment Appeal Tribunal, where it can be seen in the round with the other issues such as work placement. That would also be the appropriate place to deal with the issues of interpretation and, if it arises, direct effect. Neither issue may arise; but if they do arise, it seems to me they should be taken after the issue of occupation."

The Employment Appeal Tribunal decision

The Employment Appeal Tribunal (EAT) found in favour of the CAB, holding that the term 'occupation' does not cover volunteers in the European equal treatment legislation.

The EAT also found that the Employment Tribunal was entitled to find that the Bureau did not make its arrangements for volunteer workers "for the purpose of determining to whom [it] should offer employment."

"It is not automatic that such or any volunteering would lead on to a paid job or employment at the CAB. Volunteers are not given preferential treatment in applying for paid jobs with the Bureau, and all paid posts are advertised externally, and an open recruitment exercise adopted: nor is it a requirement of appointment to a paid post within the Bureau that a candidate should have any background or training with the CAB service."

If the Employment Tribunal had ruled otherwise the volunteering could have come within section s.4(1)(a) of the DDA, which states:

"(1) It is unlawful for an employer to discriminate against a disabled person -

(a) in the arrangements which he makes for the purpose of determining to whom he should offer employment".

More information