X v Mid Sussex Citizens Advice Bureau & Ors

The Framework Directive is directed to equal treatment in employment and occupation within the labour market. Its purposive and generous interpretation does not extend it to every form of human activity. Unpaid voluntary work performed without contractual obligations or remuneration is outside the EU concepts of worker and occupation where the volunteer is providing services rather than undertaking vocational training.

Under the Disability Discrimination Act 1995, a volunteer without a relevant contract is not in employment. A voluntary scheme is not an arrangement for determining who should be offered employment merely because it supplies useful experience or improves later employability. The purpose of the scheme must be examined. The appeal was dismissed.

X volunteered as an adviser for a Citizens Advice Bureau under an agreement stated not to be a contract or legally binding. She alleged that she had been required to cease volunteering because of her disability.

The Employment Tribunal held that she was not in employment under the Disability Discrimination Act 1995, and rejected claims based on arrangements for offering employment and work placement. The Employment Appeal Tribunal, in UKEAT/0220/08 and UKEAT/0511/08, dismissed her appeals. The central issues before the Court of Appeal were whether the volunteer post constituted employment, occupation or vocational training under the Framework Directive, and whether the Directive could be enforced directly against private parties.

1. Disposition. The Court of Appeal dismissed the appeal. Elias LJ gave the judgment, with which Rix LJ and Tomlinson LJ agreed.
2. Domestic legislation. Section 68 of the Disability Discrimination Act 1995 defines employment by reference to a contract of service, apprenticeship or personally performed work. The appellant had no contract and did not fall within the special provisions for office-holders, partners or barristers. She therefore fell outside section 4(2)(d).
3. Section 4(1)(a) requires an arrangement to have the purpose of determining to whom employment should be offered. The CAB’s purpose was to secure advisers to provide advice to clients. The fact that volunteering supplied useful experience, improved employability or assisted some volunteers to obtain paid work was only a consequence or by-product. It was not the purpose of the arrangement.
4. Vocational training. The purpose of the activity must be to train a person for a job. The volunteer advisers were providing services to third parties, rather than being trained for employment. The experience gained and its possible value in later employment did not convert the arrangement into vocational training.
5. Framework Directive. The Directive must be interpreted purposively, but its scope is confined to activities in the labour market and does not extend to all human activity. The EU concept of worker is not confined to contractual relationships, but requires genuine and effective activity performed for and under the direction of another in return for remuneration. The concept of occupation was principally concerned with access to a class or sector of jobs. Even if it could include a particular post outside employment or self-employment, it did not include unpaid volunteering of this kind.
6. The possible application of the [1990] ECR 1-04135 Marleasing principle and the direct-enforcement reasoning associated with Kucukdeveci, [2010] EUECJ C-340/08, did not require decision because the Directive did not apply. The court considered that a reference was unnecessary.

1. Court of Appeal (Civil Division) — [2011] EWCA Civ 28 : dismissed the appeal.
2. Employment Appeal Tribunal — Mr Justice Burton, UKEAT/0220/08 and UKEAT/0511/08: rejected the arguments based on occupation and arrangements for offering employment.
3. Employment Tribunal — held that the volunteer was not in employment, and rejected the work-placement and section 4(1)(a) claims.