The appellant (X) appealed against a decision ([2011] EWCA Civ 28, [2011] 2 C.M.L.R. 18) that she, as a volunteer advice-worker, fell outside the scope of the disability discrimination protection provided by theDisability Discrimination Act 1995andDirective 2000/78.

 

X had been a volunteer adviser for the respondent bureau. She had signed a "volunteer agreement" which was not a contract of employment and was not legally binding. She claimed that a year after taking up the position she was asked to cease acting as a volunteer, in circumstances amounting to disability discrimination. The bureau denied the claim, and there had been no adjudication on its substance. The employment tribunal, the EAT and the Court of Appeal had all held that the employment tribunal had no jurisdiction to hear the claim because volunteers fell outside the scope of the disability discrimination protection afforded by the 1995 Act and the Directive.

 

X submitted that her voluntary activities amounted to "an occupation" for the purposes ofart.3(1)of the Directive.

 

HELD: (1) The Directive did not cover voluntary activity. Its scope was defined in art.3 and it sat within a complex of measures relating to discrimination. The scope of those measures was carefully defined and differed according to context. It was an important part of X's case that the concept of "occupation" inart.3(1)(a)had to be understood as operating at the same level as "employment" and "self-employment", and that it thus had to envisage voluntary work. However, the reference to "occupation" had to be viewed in context. It was part of a clause dealing with "conditions for access" to employment, self-employment or occupation. There were many areas in which either a professional qualification was required or a restrictive condition had to be satisfied if a worker was to undertake particular work or to advance in a particular sphere. The reference to "access … to occupation" contemplated access to a sector of the market, rather than to particular employment or self-employment. Once "occupation" was understood in that sense, there was no imperative to treat it as envisaging voluntary activity. That analysis was not undermined by consideration of the French, Dutch and German versions of the article. Moreover, had the Directive been intended to apply to voluntary activity, it might have been expected that the concept of "occupation" would have been carried through expressly intoart.3(1)(c), which dealt with working conditions and dismissal. It had not, and that was a striking omission if voluntary workers were intended to be protected against dismissal on discriminatory grounds. Neither the European Commission's original proposal nor the impact assessment leading to the Directive considered or addressed voluntary activity, and a proposed amendment by the European Parliament to include in art.3(1)(a) a reference to voluntary work had been rejected. The European Commission had kept Member States' implementation of the Directive under review, but had never suggested that the United Kingdom, or any other Member State, had failed properly to implement it by failing to include voluntary activity. Finally, X did not suggest that all voluntary activity was covered by the Directive. If that was right, and the Directive was intended to cover some, but not all, voluntary activity, it would surely have given some indication as to where the line should be drawn (see paras 24, 27-34, 37-45 of judgment). (2) The conclusion that the Directive did not apply to volunteers was not open to reasonable doubt. The position, having regard to the English language material, was clear, and the other language versions to which the court had been referred reinforced that conclusion. There was thus no need to make a reference to the European Court of Justice. Rulings of the French equivalent of the Equality and Human Rights Commission which suggested otherwise could not be given greater weight than the submissions of that Commission. While both were entitled to serious consideration, neither demonstrated any scope for reasonable doubt about the Directive's true meaning and effect (paras 46-57). (3) It was unnecessary to go into the questions that would have arisen had it been concluded that art.3(1) did cover voluntary activity. Assuming that the principle inMarleasing SA v La Comercial Internacional de Alimentacion SA (C-106/89) [1990] E.C.R. I-4135would not have assisted X, there would have been the question of whether the principle in Mangold v Helm (C-144/04) [2006] All E.R. (EC) 383 might have been extended to protect her. That might well have had to be referred to the ECJ, Marleasing and Mangold referred to (para. 58).

 

Appeal dismissed.