X v Mid Sussex Citizens Advice Bureau and another

The prohibition of disability discrimination in employment under the Disability Discrimination Act 1995 applies only where the statutory definition of employment is satisfied. A volunteer serving without a legally binding contract falls outside that definition.

The expression “access to occupation” in article 3(1)(a) of the Framework Directive concerns access to a sector of the professional or economic market. It does not extend the Directive to unpaid voluntary activity. This conclusion reflects the Directive’s language, legislative history and deliberately limited material scope. A multifactorial distinction between protected and unprotected volunteers cannot be inferred from the term “occupation”.

The appellant served as an unpaid volunteer adviser for the Mid Sussex Citizens Advice Bureau under an agreement stated to be binding in honour only. The Employment Tribunal found that no legally binding contract existed. After the Bureau asked her to cease volunteering, she alleged disability discrimination.

The Employment Tribunal, Employment Appeal Tribunal and Court of Appeal held that the Tribunal lacked jurisdiction because the appellant fell outside the Disability Discrimination Act 1995 and Council Directive 2000/78/EC. The Court of Appeal decision was reported as [2011] EWCA Civ 28.

The Supreme Court considered whether “occupation” or “working conditions” in article 3(1) of the Directive included unpaid voluntary activity, whether domestic legislation could be interpreted accordingly, and whether a reference to the Court of Justice was required.

1. Appeal dismissed unanimously. Lord Mance gave the judgment, with which Lord Neuberger, Lord Walker, Lady Hale and Lord Wilson agreed. The appellant had no legally binding contract. She therefore fell outside the definition of employment in section 68(1) of the Disability Discrimination Act 1995 and was not protected by section 4(2)(d).

2. Article 3 of Council Directive 2000/78/EC does not apply to voluntary activity, apart from guidance, training and practical work experience independently covered by article 3(1)(b). The Directive’s scope was carefully and deliberately confined to specified fields. Related equality directives had different and sometimes wider scopes, confirming that the European legislature did not enact a general prohibition covering all socially valuable activity.

3. The expression “access to employment, self-employment or occupation” in article 3(1)(a) concerns access to a branch or sector of professional or economic activity. “Occupation” operates as an umbrella concept encompassing access to employment and self-employment, rather than as an additional category embracing voluntary work. The corresponding French, Spanish, Dutch and German texts supported that construction.

4. The legislative history was particularly significant. The European Parliament proposed expressly adding “unpaid and voluntary work”; the Commission adopted that proposal; but the Council omitted it from the final text. Treating the enacted Directive as covering voluntary work would contradict that deliberate legislative choice. The omission of voluntary activity from article 3(1)(c), which addresses employment and working conditions, was also striking.

5. No workable multifactorial boundary between protected and unprotected volunteering could be derived from “occupation”. Had selective protection been intended, the Directive would have indicated where the line was to be drawn.

6. There was no reasonable doubt about the Directive’s meaning after considering its context, legislative history and equally authoritative language versions. A reference to the Court of Justice was therefore neither required nor appropriate under the principles in CILFIT.

7. Because the Directive did not cover voluntary activity, it was unnecessary to determine whether conforming interpretation under Marleasing was precluded by section 68 or whether the equality principle considered in Mangold could provide direct protection.

1. United Kingdom Supreme Court: Dismissed the appeal unanimously and affirmed that the discrimination claim fell outside the Tribunal’s jurisdiction: [2012] UKSC 59.

2. Court of Appeal: Held that an unpaid volunteer without a binding contract was outside the protection of the Disability Discrimination Act 1995 and Council Directive 2000/78/EC: [2011] EWCA Civ 28.

3. Employment Appeal Tribunal: Upheld the Employment Tribunal’s conclusion that it lacked jurisdiction.

4. Employment Tribunal: Found that no legally binding contract existed and held that it lacked jurisdiction to determine the substance of the disability discrimination allegation.