Volunteers and Discrimination Protection

[Thanks to Sarah Fraser Butlin of Cloisters for preparing this case summary]

Do volunteers fall within "occupation" in the Framework Directive so they are entitled to discrimination protection?

No, says the Supreme Court in X v Mid-Sussex Citizens Advice Bureau, upholding the Court of Appeal's decision last year.

The Appellant was an HIV positive CAB volunteer.  She alleged that she was 'dismissed' because of her disability.

Lord Mance gave nine reasons for rejecting her appeal:

1. There is no general EU law principle of equality.  Protection is only afforded in specific contexts.

2. "Access to occupation" in Article 3(1)(a) concerns "access to a sector of the market rather than particular employment or self-employment".

3. If protection was intended, "occupation" would appear in Article 3(1)(c), dealing with "employment and working conditions".

4. "Occupation" derived from ILO Convention No.111, and the ILO definition i.e. "the trade, profession or type of work performed by the individual, irrespective of the branch of economic activity to which he is attached".

5. The original proposal and impact assessment did not address voluntary activity.

6. The Council of Ministers expressly rejected a proposal to include "unpaid and voluntary work".

7. No enforcement action had been taken for non-inclusion of protection for volunteers.

8. The Appellant and EHRC accepted not all volunteers were protected.  But the Directive gave no indication of where to 'draw the line' (offending against legal certainty).

9. Volunteers and workers were not comparable.  Hence the assertion that comparable situations ought to be treated comparably did not assist.

The request for a CJEU reference was rejected, as the answer was clear.