Employment Status Under DDA 1995

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

The EAT (HHJ Birtles) has handed down judgment in the case Breakell v Shropshire Army Cadet Force which is authority for the proposition that a paid volunteer is not an 'employee' under the Disability Discrimination Act 1995 if there is no mutuality of obligation between the parties.

The EAT also held that mutuality of obligation is not necessarily established where a volunteer is required to provide services when at work or can expect to be paid for them.

The Claimant was a paid volunteer Adult Instructor for the Cadet Force, although not entitled to the National Minimum Wage. An Employment Tribunal found the parties' arrangements created no mutuality of obligation; the Claimant neither had to take work, nor had the Cadet Force to provide him with it, although he had to follow instructions when at work. As he was not an 'employee' under S68(1) DDA, his claim was struck out.

The EAT upheld the Tribunal's decision largely on the factual findings of a lack of mutuality of obligation, which was open to it on the facts.

However, the EAT refused to consider employee status under S212 Employment Rights Act 1996 (a series of connected contracts) since the Claimant had not raised it at the Employment Tribunal, so the effect of the decision may be limited.

This decision relied on different reasoning to that in X v Mid Sussex CAB (see bulletin 26th January 2011), but applied South East Sheffield CAB v Grayson (UKEAT/0283/03).