X v Mid Sussex Citizens Advice Bureau and another

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Neuberger,Lord Wilson,Lord Walker,Lady Hale,Lord Mance
Judgment Date12 December 2012
Neutral Citation[2012] UKSC 59
Date12 December 2012

[2012] UKSC 59


Michaelmas Term

[2011] EWCA Civ 28


Lord Neuberger, President

Lord Walker

Lady Hale

Lord Mance

Lord Wilson

Mid Sussex Citizens Advice Bureau and another


John Lofthouse

Spencer Keen

(Instructed by Charles Russell LLP)


Christopher Jeans QC

Paul Michell

(Instructed by Bates Wells & Braithwaite LLP)

Intervener (Secretary of State for Culture, Media and Sport

Kassie Smith

(Instructed by Treasury Solicitor)

Intervener (Equality and Human Rights Commission)

Robin Allen QC

Declan O'Dempsey

Olivia-Faith Dobbie

(Instructed by Equality and Human Rights Commission)


John Bowers QC

(Instructed by The Christian Institute)

Heard on 31 October and 1 November 2012

Lord Mance (with whom Lord Neuberger, Lord Walker, Lady Hale and Lord Wilson agree)


Any responsible organisation aims to combat discrimination on the grounds of disability – or indeed any other characteristic protected by the Equality Act 2010 - and will do so for the benefit of persons serving or wishing to serve as volunteers in the organisation no less than anyone else. But the present appeal is not about this moral imperative. It is about whether, under European and domestic law, discrimination against volunteers, or some categories of volunteer, on the grounds of disability is currently unlawful and if so how the relevant volunteers are to be defined.


The appellant has both academic and practical qualifications in law. From 12th May 2006 she became a volunteer adviser for the respondent, the Mid Sussex Citizens Advice Bureau ("the CAB"). She did this after an interview in which it was explained that there would be no binding legal contract between her and the CAB. This was confirmed in her case by her signature of a volunteer agreement headed: "This agreement is binding in honour only and is not a contract of employment or legally binding". The Employment Tribunal concluded that no legally binding contract came into existence, and the contrary is no longer suggested.


The volunteer agreement stated it was "hoped that you can give at least one and half days during basic training which can last up to nine months", following which the CAB "would like you to offer at least 94 duty sessions per year", each session being usually three and a half hours. It recognised that due to changing personal circumstances this might not always be possible. It contained provisions relating to equal opportunities (stating that volunteers were expected not to discriminate against clients and colleagues and "should feel that [they] are being treated by colleagues and the Bureau fairly and with respect"), bureau practices, holidays, reimbursable expenses, retirement (stated to be normally at 70), and outside activities (asking that the manager be informed if a volunteer wished to stand for any elected public office and stating that campaign literature must not refer to experience as a CAB volunteer, but might merely state that he or she worked with an unspecified advice agency).


The appellant completed her training period by November 2006. As a voluntary adviser she thereafter carried out "a wide range of advice work duties", writing appeal submissions and case notes, undertaking specialist research, writing letters to third parties and giving legal advice to CAB clients. The CAB was "deferential to her ….. expertise" and she was given "considerable autonomy in welfare advice work" (see para 20 of the Employment Tribunal decision). She indicated her availability to volunteer on Tuesdays, Thursdays and Fridays, but because of health problems did not always attend and sometimes changed days. No objection was taken to this, and the CAB did not seek to control her hours or discuss her reliability. She was absent about 25% to 30% of the proposed times, and in practice attended between one and three days a week.


The appellant claims that on 21st May 2007 she was asked to cease to act as a volunteer in circumstances amounting to discrimination against her on the grounds of disability. The CAB denies this claim, and there has been no adjudication upon its substance. The Employment Tribunal, Employment Appeal Tribunal and Court of Appeal have held that the Employment Tribunal had no jurisdiction to hear her case, on the ground that she is, as a volunteer, outside the scope of the protection against discrimination on the grounds of disability intended to be provided under (at the relevant time) the Disability Discrimination Act 1995 and Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (the "Framework Directive").


The appellant now appeals with permission of the Supreme Court. Her appeal is supported by the Equality and Human Rights Commission as first intervener. It is resisted by the CAB, which is supported in this by the Secretary of State for Culture, Media and Sport, as second intervener, as well as by the Christian Institute, as third intervener. In addition to the third intervener, other organisations associated with volunteering have written to the respondents' solicitors to support the CAB's case that volunteers are outside the scope of protection under the Act and Framework Directive, namely the Association of Chief Executives of Voluntary Organisations, Groundwork UK and Volunteering England. Their objections are that an opposite conclusion would undermine the nature of volunteering, create practical barriers and additional costs for charities and other organisations in which volunteering occurs, and result in a formalisation they believe is unwanted by most volunteers.

The legislation

The Disability Discrimination Act 1995 provided:

"4 (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. ….

(2) It is unlawful for an employer to discriminate against a disabled person whom he employs –

(a) in the terms of employment which he affords him;

(b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit;

(c) by refusing to afford him, or deliberately not affording him, any such opportunity; or

(d) by dismissing him, or subjecting him to any other detriment."


Before the Employment Tribunal and Employment Appeal Tribunal, the appellant placed some reliance upon section 4(1)(a). This failed because there was no particular link between volunteering and employment with the CAB, and, more fundamentally, it was not the purpose of the appellant's volunteering with the CAB to determine whether it might offer her employment. Her principal case rested however on section 4(2)(d), which is the relevant clause for present purposes.


Under section 68(1), "'employment'" means "subject to any prescribed provision, employment under a contract of service or of apprenticeship or a contract personally to do any work, and related expressions are to be construed accordingly".


Accordingly, since the appellant did not have a contract, she does not on the face of it fall within the scope of the 1995 Act. In 2003 the Disability Discrimination Act 1995 (Amendment) Regulations 2003 (SI 2003/1673) were made under section 2 of the European Communities Act 1972, to give effect to the Framework Directive by adding various sections to the 1995 Act. These included sections 4D, covering certain categories of office-holders some of whom would not have contracts or remuneration, and sections 6A and 7A, covering partners and barristers. The appellant does not fall within any of these categories either.


The appellant's case is that the analysis changes once regard is had to the Framework Directive. The Directive shows, she submits, that volunteers, at least volunteers in her position, were intended to be covered by the protection against discrimination on the grounds of disability required by European Union law. In these circumstances, the 1995 Act can and should be read as affording her the requisite protection, pursuant to the principle in Marleasing SA v La Comercial Internacional de Alimentación SA ( Case C-106/89) [1990] ECR I-4135, by inserting the words "an occupation," into section 68 of the 1995 Act (e.g. after the words "subject to any prescribed provision" in the definition of employment). Alternatively, the general principle of equality contained in article 13(1) of the Treaty establishing the European Community ("TEC") (now replaced by article 19(1) of the Treaty on the Functioning of the European Union ("TFEU")), taken in combination with the Framework Directive which was enacted to crystallise it, gives her a direct claim. In support of this alternative, she invokes the Court of Justice's decisions in Mangold v Helm ( Case C-144/04) [2005] ECR I-9981 and Kücükdeveci v Swedex GmbH & Co KG ( Case C-555/07) [2010] All ER (EC) 867.


Article 13(1) TEC read:

"Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation."

Article 19(1) TFEU is in similar terms (with the difference that the Council now acts unanimously in accordance with a special legislative procedure and after obtaining the consent of the Parliament).


The Framework Directive commences with recitals, which include:

"(4) …. Convention No 111 of the International Labour Organisation (ILO) prohibits discrimination in the field of employment and occupation.


(6) The Community Charter of the Fundamental Social...

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