X v Mid Sussex Citizens Advice Bureau and another

The Supreme Court considered whether volunteers fall within the scope of protection against discrimination on grounds of disability under the Framework Directive 2000/78/EC and, as implemented domestically, the Disability Discrimination Act 1995. The court held that article 3 of the Framework Directive, read in context and against its legislative history and language versions, does not extend protection to voluntary activity in general. Consequently volunteers who do not have a contract or fall within statutory categories added by the United Kingdom regulations are outside the protection afforded by section 4(2)(d) and the definition of "employment" in section 68 of the 1995 Act.

The court rejected arguments that the domestic statute should be read in conformity with the Directive (Marleasing) to insert an "occupation" concept into the statutory definition of employment, and it declined to find a direct effect under principles derived from Mangold and K?c?kdeveci. The court also decided that there was no reasonable doubt requiring a reference to the Court of Justice of the European Union under CILFIT and Junk, because the Directive’s text, recitals, other language versions, preparatory materials and the Council’s deliberate rejection of an express reference to "voluntary" activity made the meaning clear.

Background and facts.

• The appellant began work as an unpaid volunteer adviser with Mid Sussex Citizens Advice Bureau in May 2006 under a volunteer agreement stating it was "binding in honour only" and not a contract.
• She undertook substantial advisory work, attended regularly but not always, and alleged she was asked to cease volunteering on 21 May 2007 in circumstances amounting to discrimination on grounds of disability. The CAB denied the allegation; the merits of that factual dispute were not decided in the appeal.

Procedural history. The Employment Tribunal found it had no jurisdiction because the appellant was not within the statutory definition of "employment". That conclusion was upheld by the Employment Appeal Tribunal and the Court of Appeal ([2011] EWCA Civ 28). The appellant obtained permission to appeal to the Supreme Court.

Nature of the claim / relief sought. The appellant sought a determination that she was protected against disability discrimination as a volunteer either (i) because the Framework Directive 2000/78/EC and article 13(1) TEC required volunteers to be treated as within the scope of "employment and occupation", so that domestic law should be read (Marleasing) to include "an occupation" in the definition of "employment", or (ii) because the Directive (taken with Treaty principles) gave rise to directly effective rights (Mangold/Kücükdeveci).

Issues framed by the court.

• Whether the Framework Directive’s article 3(1) concept of "occupation" or its references to "employment and working conditions" were intended to cover voluntary activity of the kind carried out by the appellant;
• Whether the Disability Discrimination Act 1995 should be interpreted or read down in conformity with the Directive so as to bring volunteers within protection;
• Whether principles in Mangold and Kücükdeveci could give the appellant a direct claim; and
• Whether the Supreme Court should refer questions to the Court of Justice under CILFIT/Junk.

Court’s reasoning (concise).

• The court analysed the Directive’s text, recitals and material legislative history. Article 3(1) should be read in context as concerned with access to sectors of the labour market (employment, self-employment or occupation) and qualifications for participating in those markets rather than encompassing unpaid volunteering generally.
• Language versions and the preparatory materials supported an interpretation of "occupation" as profession or remunerated activity; the Parliament and Council considered and rejected an express addition of "unpaid or voluntary work" when adopting the Directive.
• The court noted that other EU instruments (Race Directive) expressly extended to additional fields (e.g. social protection, goods and services) where coverage was intended; the absence of similar express wording in the Framework Directive reinforced the conclusion that voluntary activity was not intended to be covered.
• HALDE rulings in France and some Belgian legislative measures that go wider than the Directive did not create reasonable doubt about the Directive’s meaning. Domestic regulations (UK 2003 amendments) went beyond the Directive in some respects but explanatory material expressly stated unpaid volunteers would not be covered.
• The court concluded there was no reasonable doubt requiring a reference to the Court of Justice, and therefore dismissed the appeal.

Wider implications. The court observed that treating volunteers as covered would have significant policy consequences and that the Framework Directive’s carefully delineated scope and legislative history point away from such an extension.

Appeal dismissed. The Supreme Court held that the Framework Directive 2000/78/EC, properly construed in context (including article 3(1)(a), the recitals, other language versions and the legislative history), does not extend to voluntary activity of the kind performed by the appellant; accordingly the Disability Discrimination Act 1995 does not require reading to cover such volunteers and there was no basis for a direct claim under Mangold/Kücükdeveci. There was no reasonable doubt requiring a reference to the Court of Justice.

The claim was considered by an Employment Tribunal and then by the Employment Appeal Tribunal, both of which held the tribunal lacked jurisdiction because the appellant was not in "employment" under the Disability Discrimination Act 1995. The Court of Appeal affirmed that conclusion ([2011] EWCA Civ 28). The appellant appealed with permission to the Supreme Court, which dismissed the appeal.