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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> X v Mid Sussex Citizens Advice Bureau & Anor [2009] UKEAT 0220_08_3010 (30 October 2009) URL: https://www.bailii.org/uk/cases/UKEAT/2009/0220_08_3010.html Cite as: [2009] UKEAT 0220_08_3010, [2010] ICR 423, [2010] 1 CMLR 27, [2009] UKEAT 220_8_3010, [2010] IRLR 101 |
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At the Tribunal | |
On 5 & 6 October 2009 | |
Before
THE HONOURABLE MR JUSTICE BURTON
(SITTING ALONE)
APPELLANT | |
2) LIN CHALLIS |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR JOHN LOFTHOUSE (of Counsel) and MR ![]() ![]() (of Counsel) Instructed by: Messrs Charles Russell LLP Solicitors 5 Fleet Place London EC4M 7RD |
For the Respondents | MR PAUL MICHELL (of Counsel) and MR ED WILLIAMS (of Counsel) Instructed by: Messrs Bates, Wells & Braithwaite LLP Solicitors Scandinavian House 2-6 Cannon Street London EC4M 6YH |
SUMMARY
DISABILITY DISCRIMINATION: Exclusions/jurisdictions
The Employment Judge did not err in finding that the Appellant, a volunteer worker with the CAB, was not entitled by the DDA to claim disability discrimination. The Government is not in breach of the Framework Directive in this regard, and s4(2)(d) and s68 of the DDA do not fall to be read down or rewritten (by reference to Marleasing or Mangold) so as to extend protection to voluntary workers without a contract. The Judge was also entitled to find that the CAB arrangements were not within s4(1)(a) of the DDA.
THE HONOURABLE MR JUSTICE BURTON
(i) The Claimant applied on 28 April 2006 to be a volunteer with the Respondent CAB, indicating that she would like to volunteer for 4 to 5 hours per week (paragraph 6 of Judgment 1).
(ii) She was given a volunteer agreement, which she signed on 12 May 2006 and which was described as being "binding in honour only … and not a contract of employment or legally binding" (paragraph 9 of Judgment 1).
(iii) The Claimant, who had a number of academic and practical qualifications in law, undertook a wide range of advice work duties. No attendance records are kept for volunteers, but the Claimant frequently did not attend on the days she was expected, approximately 25-30 per cent of the time, and no objection was ever taken to this or to her changing the days she came in (paragraphs 6 and 15-16 of Judgment 1).
(iv) It is not automatic that such or any volunteering would lead on to a paid job or employment at the CAB. Volunteers are not given preferential treatment in applying for paid jobs with the Bureau, and all paid posts are advertised externally, and an open recruitment exercise adopted: nor is it a requirement of appointment to a paid post within the Bureau that a candidate should have any background or training with the CAB service (paragraph 12 of Judgment 2).
The Framework Directive Point
"It is unlawful for an employer to discriminate against a disabled person whom he employs –
…
(d) by dismissing him, or subjecting him to any other detriment."
""Employment" means, subject to any prescribed provision, employment under a contract of service or of apprenticeship or a contract personally to do any work, and related expressions are to be construed accordingly."
The s4(1)(a) Point
"(1) It is unlawful for an employer to discriminate against a disabled person –
(a) in the arrangements which he makes for the purpose of determining to whom he should offer employment".
"… when one poses the relevant question - are the volunteering arrangements for the purposes of determining to whom employment should be offered? - the answer is "no": the engaging of volunteers is to provide volunteer advice and other work to support the CAB's charitable aims. It is a by-product and not a purpose, that in engaging and training volunteers the CAB develops a cadre of individuals who are likely to develop skills suitable for paid employment which can lead to paid work at the CAB. But that is not the sole, dominant or indeed any part of the actual purpose of the arrangement."
Common Ground
(i) Amongst the agreed materials is the Disability Rights Task Force Report to which I have already referred, which, at paragraph 37, recorded that "most volunteers are not employees and are therefore not covered by the DDA employment provisions". In the Response by the DRC to a Work and Pensions Select Committee Inquiry in 2002, the DRC recorded, at paragraph 42, that the then anticipated compliance by the UK Government with the Framework Directive would "leave some kinds of work experience unprotected, including more informal kinds of volunteering".
(ii) So far as Parliament is concerned, the implementation of the Framework Directive led to Regulations by way of amendment to the DDA in 2003, which included provisions in relation to access to occupation (e.g. ss7A-D (barristers etc) and 14A, B (qualifications bodies) and extensions to certain office-holders (with minor exceptions, only those who are remunerated) by ss4C-F. There was no extension into the volunteering sector: of course those voluntary workers with contracts within s68 remained covered. In a Report by the Joint Committee (of the two Houses of Parliament) on a Draft Disability Discrimination Bill in 2004, it was recorded, in paragraph 352, that volunteers are not currently protected from discrimination, nor entitled to reasonable adjustments under the DDA.
(iii) So far as decisions of the Court are concerned, because the volunteer workers in the relevant cases were not found to be engaged under a relevant contract, they have been found, in a number of EAT decisions, not to be protected by the relevant anti-discrimination legislation: see South East Sheffield CAB v Grayson [2004] IRLR 35 and Bruce v Dial House Chester [2004] UKEAT/0555/04/SM (13 September 2004), both DDA cases. At the Court of Appeal level, there have been decisions, again based upon the absence of a qualifying contract: The Mirror Group Newspapers Ltd v Gunning [1986] ICR 145 and Patterson v Legal Services Commission [2004] ICR 312, but in particular Mingeley v Pennock [2004] ICR 727, a racial discrimination case, where again the application of the relevant interpretation section (s78 in the 1976 Act, referred to in paragraph 13 above) was in issue. Counsel in Mingeley invited the Court of Appeal to construe s78 in the light of the provisions of the then recent Directives. At paragraphs 12 and 13 of his judgment, Maurice Kay LJ, instead of being persuaded by the contention that there had been no amendment of s78 because it now fell to be construed so as to allow exclusion of anti-discrimination protection, considered this an "unsustainable argument", and rather concluded that the statutory provisions as previously construed, given that they had not been amended, should continue to be so construed. A similar view was reached by Lord Hoffmann in Percy v Church of Scotland Board of National Mission [2006] ICR 134. The majority of the House construed Miss Percy's relationship with the Church of Scotland as a contract falling within s82 of the Sex Discrimination Act. Lord Hoffmann, in dissenting from the rest of the House in relation to whether there was a contract, referred at paragraph 73 of his speech to the decision of the European Court in Lawrie-Blum, and to the definition of a worker by reference to rights and duties and remuneration, to which I have referred in paragraph 17 above. This informed his view that Miss Percy was not a worker and had no contract. He added that the amendment of the UK legislation (subsequent to the events of the Percy case) so as to extend protection to certain office-holders might have protected Miss Percy if it had been in place at the time. None of their Lordships considered an argument that the Directive(s) rendered it unnecessary for there to be a contract.
The Framework Directive
"Whereas:
…
(4) The right of all persons to equality before the law and protection against discrimination constitutes a universal right recognised by the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of All Forms of Discrimination against Women, United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights and by the European Convention for the Protection of Human Rights and Fundamental Freedoms, to which all Member States are signatories. Convention No 111 of the International Labour Organisation (ILO) prohibits discrimination in the field of employment and occupation
…
(6) The Community Charter of the Fundamental Social Rights of Workers recognises the importance of combating every form of discrimination, including the need to take appropriate action for the social and economic integration of elderly and disabled people.
…
(9) Employment and occupation are key elements in guaranteeing equal opportunities for all and contribute strongly to the full participation of citizens in economic, cultural and social life and to realising their potential.
…
(12) To this end, any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community. This prohibition of discrimination should also apply to nationals of third countries but does not cover differences of treatment based on nationality and is without prejudice to provisions governing the entry and residence of third-country nationals and their access to employment and occupation.
…
(27) In its Recommendation 86/379/EEC of 24 July 1986 on the employment of disabled people in the Community, the Council established a guideline framework setting out examples of positive action to promote the employment and training of disabled people, and in its Resolution of 17 June 1999 on equal employment opportunities for people with disabilities, affirmed the importance of giving specific attention inter alia to recruitment, retention, training and lifelong learning with regard to disabled persons.
…
Article 1
Purpose
The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.
…
Article 3
Scope
1. Within the limits of the areas of competence conferred on the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:
(a) conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;
(b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience;
(c) employment and working conditions, including dismissals and pay;
(d) membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations.
…
Article 5
Reasonable accommodation for disabled persons
In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned."
(i) It is apparent from paragraph 50 of his skeleton that he draws this basic definition of occupation from the words of Stanley Burnton J, which are expressly taken from the European Court judgments, to which I have referred in paragraph 17 above. Stanley Burnton J, in paragraph 17 of his judgment, recites at length from Kurz, and in particular the passage I have cited above. Steymann v Staatssecretaris van Justitie [1988] ECR 6159, to which Stanley Burnton J then refers, and from which he quotes, and from which it appears he most directly takes the words "the work must be genuine and effective and not such as to be regarded as purely marginal and ancillary", specifically draws that quotation from the earlier case of Levin v Staatsecretaris van Justitie [1982] ECR 1035, one of the 'worker' cases listed by the Advocate General in Wippel, again referred to above. This only emphasises that Payir is a "worker" case and not an occupation case. Indeed, neither party has been able to adduce any European authority on the meaning of occupation, and I do not conclude that there is any assistance on the European meaning of the word occupation, insofar as it is material to my decision in this case, from the two 19th century English cases, and one early 20th century Canadian case, referred to in Mr Lofthouse's skeleton, although not in the event even produced in the bundle of authorities put before me.
(ii) Even assuming that the question of an activity being "more than marginal in its impact" were relevant, I would find that very difficult indeed to use as any kind of test by which to decide if a voluntary worker is a 'qualifying worker'. What, I asked Mr Lofthouse, of a surveyor giving voluntarily of his time for two hours a year to his local church to check that the church bell was safe in its moorings? Albeit in terms of time no more than marginal, would that not be, in its potential impact on the church, significant? Mr Lofthouse's answer was simply that, in every case, the answer would have to be fact sensitive.
(i) Enforcement by the European Commission or, derivatively, by the Equal Opportunities Commission ("EOC") or its successor, the Equality and Human Rights Commission ("EHRC") against the Government. This has not occurred, and that in itself is of some significance, a matter to which I return below.
(ii) A directive can, of course, be directly enforced by cause of action if it has direct, or vertical, effect. As set out in paragraph 16 above, it is common ground that the Framework Directive is not so directly enforceable in this case at the instance of the Appellant. The uniqueness of direct effect is regularly emphasised by the European Court as a "cornerstone" of European Court jurisprudence (see Palacios de la Villa v Cortefiel Servicios SA [2008] AER (EC) 249 in the Opinion of the Advocate General at paragraphs 106 to 110), and the importance of not giving 'horizontal' effect to directives is further emphasised in the Opinion of the Advocate General in Marshall v Southampton and South West Hampshire AHA [1986] ICR 335 at 346E-G.
"It is the responsibility of the national court to guarantee the full effectiveness of the general principle of non-discrimination in respect of age, setting aside any provision of national law which may conflict with Community law, even where the period prescribed for transposition of that directive has not yet expired."
"In those circumstances, I consider that the general principle of equality, and specifically equal treatment irrespective of age as identified by the Court in Mangold's case cannot be applied horizontally. In so saying, I accept that such a principle can apply (both vertically and horizontally) to the extent that it does so within a specific Community law framework.
88. However, where there is no such framework, as in the present case, the general principle of equality, and specifically equal treatment irrespective of age, has nothing on which to bite. It therefore cannot be applied (either vertically or horizontally) unless and until the Community legislator has enacted the necessary detailed measures under Article 13 EC and any transposition period has expired. Once that has happened, the general principle will … be used to interpret the implementing legislation rather than operating autonomously."
Does the Framework Directive require protection for (some) voluntary workers?
(i) Recital (4) expressly derives from Convention No 111 of the ILO. Article 1(3) of that Convention states:
"For the purpose of this Convention the terms employment and occupation include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment."
There is nothing therefore to oust, and everything to support, the conclusion that occupation is included in order to emphasise qualifications and professional requirements required for access to employment.
(ii) Recital (6) expressly refers to the Community Charter of the Fundamental Social Rights of Workers adopted by the heads of Government of member states of the Community (except the UK) in December 1989 (the "Social Charter"). Under the heading "Freedom of Movement" it is provided by paragraph 2:
"The right to freedom of movement shall enable any worker to engage in any occupation or profession in the Community in accordance with the principles of equal treatment as regards access to employment, working conditions and social protection in the host country."
Under the heading "Employment and Remuneration" it is then provided:
"4. Every individual shall be free to choose and engage in an occupation according to the regulations governing each occupation.
5. All employment shall be fairly remunerated."
It is apparent that the provisions of the Charter relate to the rights of workers, both as regards access to employment in any occupation and remuneration once so engaged.
(iii) Recital (12) plainly on its face relates to "access to employment and occupation".
(iv) In Recital (27) there is no reference to occupation such as to oust what would otherwise be the ordinary understanding of paid employment. Mr Michell also points out that there is no reference to occupation in the provision in Article 5 relating to reasonable accommodation for disabled persons, which is the principle which underlies the provisions for the duty of employers to make adjustments in national legislation: and that so far as disabled persons are concerned the making of such reasonable adjustment is the most significant aspect of working conditions in Article 3(1)(c).
(i) No authority in European law is cited by Mr Lofthouse, nor any jurisprudence suggesting that occupation is intended to mean unpaid employment, as opposed to being a reference to a profession or qualification or area of work, access to which may be necessary for employment and continued employment (including promotion). Indeed, if anything, the contrary is suggested by the fact that neither the European Commission nor the EOC/EHRC has suggested non-compliance by the UK Government with its obligations under the Directive (see paragraph 22(i) above). Included in the agreed material is a list dated 31 January 2008 of Member States to whom such a complaint was to be sent in relation to alleged non-compliance with the Framework Directive. The UK is not on the list. Nor has the EOC so alleged when, in its action against the Secretary of State for Trade and Industry (Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] IRLR 327) it alleged non-compliance with the equivalent Directive in a number of respects in relation to the Sex Discrimination Act, but not suggesting that the equivalent definition section, s82, failed to comply in not extending protection to voluntary workers.
(ii) I have already referred in paragraph 17 above to the striking factor that the European definition of worker consistently includes the existence of mutual rights and duties (not applicable where there is no contract) and remuneration (not applicable in relation to voluntary workers). This filters through into the Social Charter reflected in Recital (6) above, and even to the extent that materially the only office-holders protected as a result of UK implementation of the Directive are those who receive remuneration. Both the examples of "working conditions" referred to in Article 3(1)(c) of the Directive are inapt to a voluntary worker.
(iii) An English judge, when addressing the question of statutory construction of a European directive, must always do so with considerable diffidence. Nevertheless it must be said that there is no express provision anywhere in the Directive of what would be for the first time the extension of protection to unpaid voluntary workers. In particular, I must consider the specific submission made by Mr Lofthouse that occupation is intended to mean something different from employment in Article 3(1)(a). If that is right, it is difficult to see why it becomes subsumed within employment in Article 3(1)(c) and Article 5. I would prefer to conclude, with Mr Michell, that occupation expressly only features in the context of access to employment within 3(1)(a).
The Marleasing/Mangold Approaches
"Moreover, the exercise of the interpretative obligation cannot require courts to make decisions for which they are not equipped, or which give rise to important practical repercussions which the court is not equipped to evaluate. Vodafone 2 v Commissioners for HM Revenue & Customs [2009] EWCA Civ 446, para 38. The practical repercussions of introducing new protection for some/all volunteers in some/all fields of discrimination law will be significant. This is particularly so as regards disability, given the duty (which would retrospectively apply?) to make reasonable adjustments."
S4(1)(a)
"It is not the case that volunteers characteristically progress on to paid employment within the CAB service. Volunteers are not given preferential treatment in applying for paid posts with the Bureau."
"the meaning of 'arrangements' … is wide. Such arrangements are not confined to those which an employer makes in deciding who should be offered a specific job, but also include arrangements for deciding who should be offered employment more generally. Thus, for example, participation in a pre-employment training programme could be 'an arrangement' if its completion is a necessary step along the road to gaining an offer of employment."
Conclusion