Treating volunteers as ‘members of an association’ and the implications for English discrimination law
| DOI | 10.1177/1358229112446367 |
| Author | Tom Royston |
| Published date | 01 March 2012 |
| Date | 01 March 2012 |
| Subject Matter | Articles |
Article
Treating volunteers
as ‘members of an
association’ and the
implications for
English discrimination
law
Tom Royston
Abstract
Volunteers are not as a category expressly protected against discrimination under
English law. This paper analyses the argument that volunteers ought to be protected by
being treated as employees, with particular reference to X v Mid Sussex CAB. It considers
the potential alternative argument that volunteers ought to be treated as service reci-
pients. It concludes that neither argument is likely to succeed. However, volunteers
might profitably contend that they are ‘members of associations’, and therefore entitled
to protection under Part 7 of the Equality Act 2010.
Keywords
Volunteers, discrimination, associations, Equality Act 2010
Introduction
This paper maps one of the contextual boundaries of discrimination law, analysing
whether, and in what circumstances, volunteers
1
can make discrimination claims against
their host organisations under English law. It does this by particular reference to three
propositions:
Kirklees Law Centre, Dewsbury, UK
Corresponding author:
Tom Royston, Kirklees Law Centre, Empire House, Wakefield Old Rd, Dewsbury WF12 8DJ, UK
Email: troyston@kirkleeslc.org.uk
International Journalof
Discrimination and theLaw
12(1) 5–26
ªThe Author(s) 2012
Reprints and permission:
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DOI: 10.1177/1358229112446367
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(i) that a volunteer is an employee;
2
(ii) that a volunteer is a service recipient;
3
and
(iii) that a volunteer is a member of an association.
4
The first proposition has been quite thoroughly traversed in litigation, but has so far led
consistently to failure for litigant volunteers. The second and third arguments, however,
have not been closely explored by the English courts. It is argued that the third, in
particular, ought to be, especially in the light of the changes made to discrimination law
by the Equality Act 2010. Without much comment, Parliament has cast the definition of
an association’s membership in a way which now may include many kinds of volunteers.
This development is welcomed. Volunteering plays a significant part in the civil soci-
ety of the UK. A quarter of adults volunteer on a formal basis at least monthly.
5
As they
do that in increasingly structured, professionalised settings,
6
it might not seem contro-
versial for them to expect protection against discriminatory treatment. Further, the alter-
native to protection under Part 7 of the Equality Act 2010 is not likely to be a
straightforward exclusion of volunteers from discrimination law rights, but rather a rag-
gedy continuation of attempts to squeeze their claims into a variety of categories arising
out of both domestic and international law. The attendant uncertainty of this would be
undesirable not only for volunteers, but also their host organisations.
Employment
The proposition that volunteers are within the scope of employment discrimination leg-
islation has, in the decided cases, been supported by reference to three sub-arguments:
volunteers are ‘employed’ and consequently protected in the plain wording of
domestic law;
volunteers are either ‘workers’ or in an ‘occupation’ and therefore protected by
European Union (EU) law, which requires domestic law to be read in such a way
as to give effect to that protection; and
even if neither ‘employed’ nor ‘workers’ nor in an ‘occupation’, volunteers are par-
ticipating in a process with the purpose of determining who should be offered
employment (in effect, a species of recruitment exercise).
‘Employed’ volunteers
The relevant definition of employment, materially identical to its predecessor definitions
in the earlier equality statutes,
7
is now found in section 83 of the Equality Act 2010:
(2) ‘Employment’ means—
(a) employment under a contract of employment, a contract of apprenticeship or a contract
personally to do work.
The high point of the argument that volunteers are ‘employed’ came in Murray v New-
ham Citizens Advice Bureau (No 1),
8
where the employment appeal tribunal (EAT)
6International Journal of Discrimination and the Law 12(1)
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