Michaelmas Term [2012] UKSC 59 On appeal from: [2011] EWCA Civ 28

 

JUDGMENT
X (Appellant) v Mid Sussex Citizens Advice Bureau
and another (Respondents)
before
Lord Neuberger, President
Lord Walker
Lady Hale
Lord Mance
Lord Wilson
JUDGMENT GIVEN ON
12 December 2012
Heard on 31 October and 1 November 2012
Appellant Respondent
John Lofthouse Christopher Jeans QC
Spencer Keen Paul Michell
(Instructed by Charles
Russell LLP)
(Instructed by Bates Wells
& Braithwaite LLP)
Intervener (Secretary of
State for Culture, Media
and Sport
Intervener (Equality and
Human Rights
Commission)
Kassie Smith Robin Allen QC
Declan O’Dempsey
Olivia-Faith Dobbie
(Instructed by Treasury
Solicitor)
(Instructed by Equality
and Human Rights
Commission)
Intervener
John Bowers QC
(Instructed by The
Christian Institute)
LORD MANCE (with whom Lord Neuberger, Lord Walker, Lady Hale and
Lord Wilson agree)
Introduction
1. Any responsible organisation aims to combat discrimination on the grounds
of disability – or indeed any other characteristic protected by the Equality Act
2010 – and will do so for the benefit of persons serving or wishing to serve as
volunteers in the organisation no less than anyone else. But the present appeal is
not about this moral imperative. It is about whether, under European and domestic
law, discrimination against volunteers, or some categories of volunteer, on the
grounds of disability is currently unlawful and if so how the relevant volunteers
are to be defined.
2. The appellant has both academic and practical qualifications in law. From
12th May 2006 she became a volunteer adviser for the respondent, the Mid Sussex
Citizens Advice Bureau (“the CAB”). She did this after an interview in which it
was explained that there would be no binding legal contract between her and the
CAB. This was confirmed in her case by her signature of a volunteer agreement
headed: “This agreement is binding in honour only and is not a contract of
employment or legally binding”. The Employment Tribunal concluded that no
legally binding contract came into existence, and the contrary is no longer
suggested.
3. The volunteer agreement stated it was “hoped that you can give at least one
and half days during basic training which can last up to nine months”, following
which the CAB “would like you to offer at least 94 duty sessions per year”, each
session being usually three and a half hours. It recognised that due to changing
personal circumstances this might not always be possible. It contained provisions
relating to equal opportunities (stating that volunteers were expected not to
discriminate against clients and colleagues and “should feel that [they] are being
treated by colleagues and the Bureau fairly and with respect”), bureau practices,
holidays, reimbursable expenses, retirement (stated to be normally at 70), and
outside activities (asking that the manager be informed if a volunteer wished to
stand for any elected public office and stating that campaign literature must not
refer to experience as a CAB volunteer, but might merely state that he or she
worked with an unspecified advice agency).
Page 2
4. The appellant completed her training period by November 2006. As a
voluntary adviser she thereafter carried out “a wide range of advice work duties”,
writing appeal submissions and case notes, undertaking specialist research, writing
letters to third parties and giving legal advice to CAB clients. The CAB was
“deferential to her ….. expertise” and she was given “considerable autonomy in
welfare advice work” (see para 20 of the Employment Tribunal decision). She
indicated her availability to volunteer on Tuesdays, Thursdays and Fridays, but
because of health problems did not always attend and sometimes changed days. No
objection was taken to this, and the CAB did not seek to control her hours or
discuss her reliability. She was absent about 25% to 30% of the proposed times,
and in practice attended between one and three days a week.
5. The appellant claims that on 21st May 2007 she was asked to cease to act as
a volunteer in circumstances amounting to discrimination against her on the
grounds of disability. The CAB denies this claim, and there has been no
adjudication upon its substance. The Employment Tribunal, Employment Appeal
Tribunal and Court of Appeal have held that the Employment Tribunal had no
jurisdiction to hear her case, on the ground that she is, as a volunteer, outside the
scope of the protection against discrimination on the grounds of disability intended
to be provided under (at the relevant time) the Disability Discrimination Act 1995
and Council Directive 2000/78/EC establishing a general framework for equal
treatment in employment and occupation (the “Framework Directive”).
6. The appellant now appeals with permission of the Supreme Court. Her
appeal is supported by the Equality and Human Rights Commission as first
intervener. It is resisted by the CAB, which is supported in this by the Secretary of
State for Culture, Media and Sport, as second intervener, as well as by the
Christian Institute, as third intervener. In addition to the third intervener, other
organisations associated with volunteering have written to the respondents’
solicitors to support the CAB’s case that volunteers are outside the scope of
protection under the Act and Framework Directive, namely the Association of
Chief Executives of Voluntary Organisations, Groundwork UK and Volunteering
England. Their objections are that an opposite conclusion would undermine the
nature of volunteering, create practical barriers and additional costs for charities
and other organisations in which volunteering occurs, and result in a formalisation
they believe is unwanted by most volunteers.
The legislation
7. The Disability Discrimination Act 1995 provided:
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“4 (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. ….
(2) It is unlawful for an employer to discriminate against a disabled
person whom he employs –
(a) in the terms of employment which he affords him;
(b) in the opportunities which he affords him for promotion, a
transfer, training or receiving any other benefit;
(c) by refusing to afford him, or deliberately not affording him, any
such opportunity; or
(d) by dismissing him, or subjecting him to any other detriment.”
8. Before the Employment Tribunal and Employment Appeal Tribunal, the
appellant placed some reliance upon section 4(1)(a). This failed because there was
no particular link between volunteering and employment with the CAB, and, more
fundamentally, it was not the purpose of the appellant’s volunteering with the
CAB to determine whether it might offer her employment. Her principal case
rested however on section 4(2)(d), which is the relevant clause for present
purposes.
9. Under section 68(1), “‘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”.
10. Accordingly, since the appellant did not have a contract, she does not on the
face of it fall within the scope of the 1995 Act. In 2003 the Disability
Discrimination Act 1995 (Amendment) Regulations 2003 (SI 2003/1673) were
made under section 2 of the European Communities Act 1972, to give effect to the
Framework Directive by adding various sections to the 1995 Act. These included
sections 4D, covering certain categories of office-holders some of whom would
Page 4
not have contracts or remuneration, and sections 6A and 7A, covering partners and
barristers. The appellant does not fall within any of these categories either.
11. The appellant’s case is that the analysis changes once regard is had to the
Framework Directive. The Directive shows, she submits, that volunteers, at least
volunteers in her position, were intended to be covered by the protection against
discrimination on the grounds of disability required by European Union law. In
these circumstances, the 1995 Act can and should be read as affording her the
requisite protection, pursuant to the principle in Marleasing SA v La Comercial
Internacional de Alimentación SA (Case C-106/89) [1990] ECR I-4135, by
inserting the words “an occupation,” into section 68 of the 1995 Act (e.g. after the
words “subject to any prescribed provision” in the definition of employment).
Alternatively, the general principle of equality contained in article 13(1) of the
Treaty establishing the European Community (“TEC”) (now replaced by article
19(1) of the Treaty on the Functioning of the European Union (“TFEU”)), taken in
combination with the Framework Directive which was enacted to crystallise it,
gives her a direct claim. In support of this alternative, she invokes the Court of
Justice’s decisions in Mangold v Helm (Case C-144/04) [2005] ECR I-9981 and
Kücükdeveci v Swedex GmbH & Co KG (Case C-555/07) [2010] All ER (EC) 867.
12. Article 13(1) TEC read:
“Without prejudice to the other provisions of this Treaty and within
the limits of the powers conferred by it upon the Community, the
Council, acting unanimously on a proposal from the Commission
and after consulting the European Parliament, may take appropriate
action to combat discrimination based on sex, racial or ethnic origin,
religion or belief, disability, age or sexual orientation.”
Article 19(1) TFEU is in similar terms (with the difference that the Council now
acts unanimously in accordance with a special legislative procedure and after
obtaining the consent of the Parliament).
13. The Framework Directive commences with recitals, which include:
“(4) …. Convention No 111 of the International Labour Organisation
(ILO) prohibits discrimination in the field of employment and
occupation.
….
Page 5
(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.
(7) The EC Treaty includes among its objectives the promotion of
coordination between employment policies of the Member States. To
this end, a new employment chapter was incorporated in the EC
Treaty as a means of developing a coordinated European strategy for
employment to promote a skilled, trained and adaptable workforce.
….
(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.
….
(11) Discrimination based on religion or belief, disability, age or
sexual orientation may undermine the achievement of the objectives
of the EC Treaty, in particular the attainment of a high level of
employment and social protection, raising the standard of living and
the quality of life, economic and social cohesion and solidarity, and
the free movement of persons.
(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….
….
(16) The provision of measures to accommodate the needs of
disabled people at the workplace plays an important role in
combating discrimination on grounds of disability.
Page 6
(17) This Directive does not require the recruitment, promotion,
maintenance in employment or training of an individual who is not
competent, capable and available to perform the essential functions
of the post concerned or to undergo the relevant training, without
prejudice to the obligation to provide reasonable accommodation for
people with disabilities.
….
(20) Appropriate measures should be provided, i.e. effective and
practical measures to adapt the workplace to the disability, for
example adapting premises and equipment, patterns of working time,
the distribution of tasks or the provision of training or integration
resources.
….
(23) In very limited circumstances, a difference of treatment may be
justified where a characteristic related to religion or belief, disability,
age or sexual orientation constitutes a genuine and determining
occupational requirement, when the objective is legitimate and the
requirement is proportionate. Such circumstances should be included
in the information provided by the Member States to the
Commission.
….
(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.
….
(37) In accordance with the principle of subsidiarity set out in Article
5 of the EC Treaty, the objective of this Directive, namely the
Page 7
creation within the Community of a level playing-field as regards
equality in employment and occupation, cannot be sufficiently
achieved by the Member States and can therefore, by reason of the
scale and impact of the action, be better achieved at Community
level. In accordance with the principle of proportionality, as set out
in that Article, this Directive does not go beyond what is necessary
in order to achieve that objective.”
14. In the light of these recitals, the Framework Directive provides:
“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 2
Concept of discrimination
[Defines the concept]
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;
Page 8
(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 16
Compliance
Member States shall take the necessary measures to ensure that:
(a) any laws, regulations and administrative provisions contrary to
the principle of equal treatment are abolished;
(b) any provisions contrary to the principle of equal treatment which
are included in contracts or collective agreements, internal rules of
undertakings or rules governing the independent occupations and
professions and workers’ and employers’ organisations are, or may
be, declared null and void or are amended.”
Employment and occupation
15. The appellant focuses on the Directive’s references to “occupation” in
article 3(1)(a). This, she submits, is wide enough to cover her voluntary activity.
She also argues that the reference to “working conditions” in article 3(1)(c) is wide
enough to embrace both self-employment and occupation. There is no single
definition of “worker” under European law: Martínez Sala v Freistaat Bayern
(Case C-85/96). But the Directive was intended to afford under article 13 TEC
protection against discrimination on grounds paralleling that already provided on
the ground of sex by directives made under article 141 TEC (now article 157
Page 9
TFEU). That intention is stated in the Commission’s original proposal for the
Framework Directive (COM(1999) 565 final), fifth para of the introduction:
“The discriminatory grounds covered by this proposal coincide with
those laid down by Article 13 of the Treaty with the exception of the
ground of sex. Such an exclusion has a twofold justification. First,
the appropriate legal basis for Community legislation on equal
opportunities and equal treatment of men and women in matters of
occupation and employment is Article 141 of the Treaty. Secondly,
Council Directives 76/207/EEC and 86/613/EEC have already
established the principle of equality of treatment between men and
women in this field.”
16. It is therefore relevant to see how the concepts of worker and employment
have been understood in the parallel context of the right to equal pay of male and
female workers. In Allonby v Accrington & Rossendale College (Case C-256/01)
[2004] ICR 1328, the Court of Justice said (para 66) that the concept of “worker”
has a Community meaning and “cannot be interpreted restrictively”: But, it went
on:
“67. For the purposes of that provision, there must be considered as a
worker a person who, for a certain period of time, performs services
for and under the direction of another person in return for which he
receives remuneration (see, in relation to free movement of workers,
in particular Lawrie-Blum v Land Baden-Württemberg (Case 66/85)
[1987] ICR 483, 488, para 17, and Martínez Sala, para 32).
17. In Lawrie-Blum v Land Baden-Württemberg (Case 66/85) [1987] ICR 483
the Court said:
“16. …. The concept of a ‘worker’ must be interpreted broadly: Levin
v Staatssecretaris van Justitie (Case 53/81) [1982] ECR 1035).
17. That concept must be defined in accordance with objective
criteria which distinguish the employment relationship by reference
to the rights and duties of the persons concerned. The essential
feature of an employment relationship, however, is that for a certain
period of time a person performs services for and under the direction
of another person in return for which he receives remuneration.”
Page 10
18. In later case-law repeating the final sentence, the Court of Justice has
expanded its explanation of the concept. As it said in Franca Ninni-Orasche v
Bundesminister für Wissenschaft, Verkehr und Kunst Case 413/01, para 26:
“In order to be treated as a worker, a person must nevertheless
pursue an activity which is effective and genuine, to the exclusion of
activities on such a small scale as to be regarded as purely marginal
and accessory (see, in particular, Levin Case 53/81, paragraph 17,
and Meeusen Case 337/97, paragraph 13).”
19. The concept of “self-employment” used in the Directive clearly refers to the
rendering of services for remuneration in circumstances not involving or
constituting employment.
20. The concept of occupation has not however been examined in European law
in the present or any other material context. The appellant submits that it embraces
her position as a volunteer. She does not contend that all volunteers can or should
be said to be in or have an “occupation”. “Occupation” is a protean word, which
can, depending on context, cover a wide variety of activities associated with work
or leisure. Volunteers also come in many forms, including the cheerful guide at the
London Olympics, the charity shop attendant, the intern hoping to learn and
impress and the present appellant who provided specialist legal services. The
intern might well fall within article 3(1)(b), but, for like reasons to those which I
have pointed out in para 8 above, the appellant did not. Hence, her invocation of
article 3(1)(a).
21. Before the Court of Appeal, the appellant advanced as a working definition
of “occupation” that
“Occupation is the carrying out of a real and genuine activity which
is more than marginal in its impact upon the person or entity for
whom such activity is carried out and which is not carried out for
remuneration or under any contract.”
Before the Supreme Court, she submitted in her Case that
“a pursuit or activity on which a person is habitually engaged can
constitute an occupation, and to be occupied simply means to be
busy or engaged on a pursuit or an activity”
Page 11
and that the scope of the Directive
“includes persons who have an occupation which is not remunerated,
so long as that activity is not merely ‘marginal’ or simply the
following of a hobby or lending of an occasional kindly hand, and/or
(b) comes within the scope of the policy of the EU and UK
legislation as something which, if excluded from protection, would
create an unacceptable lacuna in the protection intended for
workers.”
22. The Equality and Human Rights Commission adopted an analysis of the
concept of occupation modelled on the analogy of remunerated work: the more
obviously voluntary work is a substitute for or supplementary to paid work or
creates opportunities for a business to develop and grow, the more its economic
value and the more likely it should be seen as functionally isomorphic with or
analogous to employment or self-employment.
23. Both the appellant and the Commission ultimately argued for a multifactorial assessment. They submitted that the factors pointing to a conclusion that
the appellant had or was in an “occupation” included the training requirements, the
regulation of her activity by the non-binding agreement and its general supervision
by the CAB, her expertise, the purpose of her activity (to give free high quality
legal advice) and its key role in the operations of the CAB, the number of hours
and days she gave, the potential advantages of her activity in equipping her for
remunerative employment and the fact that she was providing her services
alongside and, save for her unremunerated volunteer status, in large measure
indistinguishably from others who were providing services on an employed basis.
Analysis
24. The common starting point is that the Framework Directive does not cover
all activities. Its scope is defined in article 3, although this falls to be read against
the background of the recitals. The Framework Directive sits within a complex of
measures relating to discrimination, some with wider scope. In certain areas,
notably colour, race or ethnic or national origins and sex discrimination, three sets
of initiatives came at the United Kingdom level, two of them well before its
membership of the European Union: first, the Race Relations Acts 1965 and 1968,
relating to the provision of goods and services, employment, trade union
membership and housing; second, the Equal Pay Act 1970; and, third, the Sex
Discrimination Act 1975, relating to employment, education and the provision of
goods, services and premises. The Race Relations Act 1976 replacing the 1965 Act
extended to the same fields as the Sex Discrimination Act 1975. At the European
Page 12
level, Council Directive 76/207/EEC then addressed sex discrimination in the
specific fields of “access to employment, including promotion, and to vocational
training and as regards working conditions” and in principle (but subject to further
Council legislation) social security (article 1). Article 3 explained the application
of the principle of equal treatment as meaning that there should be “no
discrimination …. on grounds of sex in the conditions, including selection criteria,
for access to all jobs or posts”. Article 4 addressed the same principle with regard
to access to vocational guidance and training, while article 5 addressed equal
treatment with regard to working conditions. Council Directive 86/613/EEC
extended the principle of equal treatment to those “engaged in an activity in a selfemployed capacity, or contributing to the pursuit of such an activity” (article 1).
The Directive was thus stated (article 2) to cover “self-employed workers, i.e. all
persons pursuing a gainful activity for their own account” and “their spouses, not
being employees or partners, where they habitually …. participate in the activities
of the self-employed worker and perform the same tasks or ancillary tasks”.
25. In 2000 the Framework Directive was issued, and in the same year article
3(1) of Council Directive 2000/43/EC (the Race Directive) prohibited
discrimination on the grounds of racial or ethnic origin in relation to the same four
fields, (a) to (d), as appear in article 3(1) of the Framework Directive. But in the
Race Directive these were followed by four additional fields:
“(e) social protection, including social security and healthcare;
(f) social advantages;
(g) education;
(h) access to and supply of goods and services which are available to
the public, including housing.”
26. Council Directive 2002/73/EC replaced articles 3, 4 and 5 of Directive
76/207/EEC with a single reformulated article 3 applying the principle of equal
treatment on grounds of sex in relation to the same four fields, (a) to (d), as appear
in article 3 of the Framework Directive (with minor amendment of (c)). The four
additional fields included in the Race Directive were not included in the newly
formulated article 3 of Directive 76/207/EEC. The reformulated article 3 was
explained by the Commission of the European Union in its report on the
application of Directive 2002/73/EC (COM(2009) 409 final) as a limited
expansion of the previous scope of Directive 76/207/EEC:
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“Directive 2002/73/EC broadened the scope of Directive
76/207/EEC, in particular by prohibiting discrimination in the
conditions governing access to self-employment and membership of
and involvement in workers’ or employers’ organisations or any
organisations whose members carry on a particular profession,
including access to the benefits such organisations provide (Article
3(l)(a) and (d)). The problems in transposing those provisions in
some Member States have consisted mainly in a failure to include
self-employment and membership of and involvement in workers’ or
employers’ organisations among the areas covered by the prohibition
on discrimination.”
27. The Commission clearly did not have in mind voluntary activities as falling
within the scope of the reformulated article 3, and the same must apply to the (for
all material purposes) identically worded article 3 of the parallel Framework
Directive. Finally, Directive 76/207/EEC was replaced in its entirety by Directive
2006/54/EC, article 14 of which prohibited discrimination on the grounds of sex in
identical terms to the reformulated article 3 which had been inserted into its
predecessor Directive 76/207/EC by Directive 2002/73/EC.
28. The conclusion to be drawn from this series of measures is that their scope
was carefully defined, differing according to context and being reconsidered and
amended from time to time. A further illustration of this is the Commission’s
proposal in 2008 (COM(2008) 426 final) for a new Directive extending the
principle of equal treatment in the context of religion or belief, disability, age or
sexual orientation to areas “other than in the field of employment and occupation”
(Article 1) and in particular to cover the four additional fields, (e) to (h), covered
by the Race Directive (para 25 above) but not presently covered by the Framework
Directive. This proposal has not at least yet been acted on.
29. Secondly, it is an important strand of the case advanced by the appellant
and the Equality and Human Rights Commission that the concept of “occupation”
must be understood as operating alongside and at the same level as “employment”
and “self-employment”; and that, accordingly, it must envisage voluntary work.
But the reference to occupation must be viewed in context. It is part of a clause,
article 3(1)(a) of the Framework Directive, dealing with “conditions for access” to
employment, self-employment or occupation “whatever the branch of activity and
at all levels of the professional hierarchy, including promotion”. There are many
areas in which a professional qualification of some nature or other is either
required or advantageous, or a restrictive condition requires to be satisfied, if a
worker is to undertake particular work or to advance in a particular sphere,
whether as an employee or on a self-employed basis. They range from, for
example, qualification as a doctor or lawyer to possession of a heavy goods vehicle
Page 14
licence. In Hashwani v Jivraj [2011] UKSC 40, [2011] 1 WLR 1872, para 49,
Lord Clarke accepted a submission that
“the expression ‘access . . . to self-employment or to occupation’
means what it says and is concerned with preventing discrimination
from qualifying or setting up as a solicitor, plumber, greengrocer or
arbitrator. It is not concerned with discrimination by a customer who
prefers to contract with one of their competitors once they have set
up in business. That would not be denying them ‘access. . . to selfemployment or to occupation’.”
30. That analysis remains in my view correct. The reference to “access …. to
occupation” contemplates – as in the present case Burton J (para 33) and Elias LJ
(paras 61-62) also thought – access to a sector of the market, rather than to
particular employment or self-employment; in that sense, it covers at a higher level
the latter two concepts. The word “occupational” in recital 23 is also used in an
umbrella sense, as covering differences in treatment justified in relation to either
employment or self-employment. Once the word “occupation” is understood in
this sense, there is no imperative, and it would indeed be contradictory, to treat the
concept of “occupation” as operating at the same level as “employment” and “selfemployment”, or as envisaging voluntary activity. It is true that there is, on this
basis, a degree of overlap with article 3(1)(d), dealing with membership of and
involvement in an organisation of workers or employers or whose members carry
on a particular profession, but this clause by no means covers the whole area of
qualifications for or restrictions of access to employment or self-employment.
31. The appellant and the Equality and Human Rights Commission submit that
a different picture emerges when regard is had to other original and equally
authoritative language versions of the Framework Directive, particularly the
French, article 3(1)(a) of which reads:
“les conditions d’accès à l’emploi, aux activités non salariées ou au
travail, y compris les critères de sélection et les conditions de
recrutement, quelle que soit la branche d’activité et à tous les
niveaux de la hiérarchie professionnelle, y compris en matière de
promotion;”
32. This uses the phrase “ou au travail” for “or to occupation”. I do not regard
that as in any way suggesting that voluntary activity was to be covered. On the
contrary, in the French version of the Commission of the European Community’s
proposal for the Framework Directive (COM(1999) 565 final), the explanation
given of the scope of draft article 1 (“en ce qui concerne l’accès à l’emploi et au
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travail, y compris la promotion, la formation professionnelle, les conditions
d’emploi, et l’affiliation à certaines organisations”) is that
“Cet article identifie les domaines régis par la proposition, à savoir
l’accès à un emploi ou profession, la promotion, la formation
professionnelle, les conditions de travail et l’affiliation à certains
organismes. ”
“Travail” and “profession” are thus equated. In the Spanish and Dutch versions,
the phrase “or to occupation” appears as “y al ejercicio profesional” and “en tot
een beroep”, referring to a profession or professional activity. In the German,
article 3(1)(a) reads simply (and inconsistently with the suggestion that voluntary
activity was contemplated):
“die Bedingungen — einschliesslich Auswahlkriterien und
Einstellungsbedingungen — für den Zugang zu unselbständiger und
selbständiger Erwerbstätigkeit, unabhängig von Tätigkeitsfeld und
beruflicher Position, einschliesslich des beruflichen Aufstiegs.”
33. This translates as
“The conditions – including selection criteria and recruitment
conditions – for access to dependant [employed] as well as
independent remunerative activity, whatever the branch of activity
and professional position, including promotion.”
34. A third point, linked with the second, is that, if there had been any intention
that the Framework Directive should apply to voluntary activity, one would have
expected the concept of “occupation” to have been carried through expressly into
article 3(1)(c), dealing with “employment and working conditions, including
dismissals and pay”. Similarly, a number of the Directive’s further recitals focus
on employment without reference to occupation or to any other term apt in context
to cover voluntary activity: see e.g. recitals (7), (11) and (17). It is true that article
3(1)(c) also omits any reference to “self-employment”, but the Directive may well
not have envisaged that there could be discrimination in relation to “working
conditions, including dismissals and pay” with regard to a self-employed person.
The omission of any reference to voluntary workers, if they were intended to be
protected against “dismissal” on discriminatory grounds, is however quite striking.
This is notwithstanding the fact that in Meyers v Adjudication Officer (Case C116/94) [1995] ECR I-2131 the Court of Justice held that a social security benefit
designed to keep low income workers in employment or to encourage them into
Page 16
employment was within the scope of Directive 76/207/EC, not only as being
directly related to access to employment, but also on the basis that the claimants’
working conditions were affected. The Court said (para 24) that: “To confine the
latter concept solely to those working conditions which are set out in the contract
of employment or applied by the employer in respect of a worker’s employment
would remove situations directly covered by an employment relationship from the
scope of the directive.” However, this was said in a context where there was a
contract of employment for reward, and does not suggest that the words
“employment and working conditions” in article 3(1)(c) cover situations of purely
voluntary activity.
35. Fourthly, the phrase “employment and occupation” is carried through into
article 1 of the Framework Directive from the title to the Directive and then from
various recitals, starting with recital 4 which refers to Convention No. 111 of the
International Labour Organisation prohibiting discrimination in that context. The
preamble to Convention No. 111 refers in turn to a meeting of the General
Conference of the ILO in Geneva at its 42nd Session on 4 June 1958. That meeting
addressed such discrimination and it led to Report IV(1). An appendix to the
Report discussed “the internationally accepted meanings of certain terms”,
including “employment and occupation”, and the need to refer to “occupation” at
all, in the following terms:
“It has been argued that there is an overlap in this title in that
‘occupation’ is only a specific aspect of ‘employment’. However, it
is clear that the intention of the [UN] Subcommission was to direct
special attention to an important aspect of the subject, namely
discrimination affecting the individual’s free choice of occupation.
For this reason there appears to be value in retaining the words ‘and
occupation’ and the Conference Committee rejected an amendment
to delete these words.
Considerable attention to terminological concepts such as
‘employment’ and ‘occupation’ has been given by successive
International Conferences of Labour Statisticians and the summary
of their more recent conclusions on these points may be of guidance
to governments.
At the Eighth International Conference of Labour Statisticians it was
decided that ‘persons in employment’ included all persons above a
specified age who were ‘at work’ and that the phrase ‘at work’
included not only persons whose status was that of employee but
also those whose status was that of ‘worker on own account’,
‘employer’ or ‘unpaid family worker’.
Page 17
The meaning attached by the Seventh International Conference of
Labour Statisticians to the word ‘occupation’ was ‘the trade,
profession or type of work performed by the individual, irrespective
of the branch of economic activity to which he is attached or of his
industrial status’.
It will be seen, therefore, that at the international level both words
have a comprehensive meaning and that they apply to all persons at
work. It appears in connection with this subject that this would
coincide with the original views of the [UN] Subcommission when
the ILO was invited to deal with the subject.”
36. The reference in the third of these paragraphs to the “unpaid family worker”
derived from an expanded definition of employment which specifically included
“unpaid family workers currently assisting in the operation of a business or farm
… if they worked for at least one-third of the normal working time during the
specified period” (see ILO: Eighth International Conference of Labour
Statisticians (1954), p 43). This specific, but very limited, extension to unpaid
workers, and the language of the appendix as a whole, demonstrate a clear
intention not to embrace volunteers generally. The main text of Report IV(1)
addressed a proposal to delete any reference to “occupation”, by recording that
“The Representative of the Secretary-General explained that the
purpose of the use of the two words ‘employment’ and ‘occupation’
in the description of the subject was to stress that it was not enough
to ensure non-discrimination in access to employment but was also
necessary to ensure the individual a free choice of occupation; it had
been the intention of the Office to include self-employed workers
since it would hardly seem right for a Convention to deal solely with
the elimination of discrimination in access to wage-earning
employment and not give to workers wishing to be self-employed
any protection against laws, regulations or practices arbitrarily
preventing them from doing so…”
37. Fifthly, the Commission’s original proposal and the annexed impact
assessment (COM(1999) 565 final) which led ultimately to the Framework
Directive were focused exclusively on situations of employment or selfemployment, and did not consider or address voluntary activity in any shape or
form. The Commission, at para 4, in explaining that the legal base was Article 13
TEC, added:
Page 18
“The fact that the material scope of the provisions planned covers
not only salaried employment but also self-employment and the
liberal professions and that its scope rationae [sic] personae is not
limited to persons excluded from the labour market, excludes
recourse to Article 137 (2) of the Treaty.
Under the Commissions original proposal, article 3(1)(a) (Material scope) would
have read:
“This Directive shall apply to:
(a) conditions for access to employment, self-employment and
occupation, including selection criteria and recruitment conditions,
whatever the sector or branch or activity and at all levels of the
professional hierarchy, including promotion;”
38. In the impact assessment, the proposal’s impact was analysed under only
three heads: (a) “on employment?” (b) “on investment and the creation of new
businesses?” and (c) “on the competitive position of companies?” Under the
second head, the response was that “The Directive will ease the conditions for
access to employment and occupation, salaried employment, self-employment and
liberal professions”. Consultation was with “the representative organisations of the
European level social partners and the European Platform of social nongovernmental organisations”. All these are recorded as having “recognised the
importance of the issue and the need for a legislative approach”, with different
points of view being recognised on some elements. Only European Platform
members “regretted the limitation … to employment and occupation”, and it seems
improbable that even they had in mind voluntary activity. Had the consultation or
assessment covered voluntary activity, the particular concerns which voluntary
organisations have expressed before us about the impact of legislation in this field
would no doubt have been identified and the subject of close attention.
39. Sixthly, however, the European Parliament did during the consultation
process which preceded the making of the Framework Directive propose
amendments to article 3(1)(a), to make it refer to:
“(a) conditions for access to employment, unpaid and voluntary
work, official duties, self-employment and occupation, including
selection criteria and recruitment conditions, finding of employment
by public and private employment agencies and authorities,
whatever the sector or branch of activity and at all levels of the
Page 19
professional hierarchy, including promotion;” (added words
italicised)
It gave as the justification that:
“Official duties, unpaid and voluntary work should likewise fall
within the scope of this directive. It would not be right for official
(i.e. public) duties to become a separate field of application: they
should be covered by the definition of the term ‘employment’.” (A5-
0264/2000 final, p 20)
40. The Commission decided to amend its proposal to take up the Parliament’s
suggestion (COM/2000/652 final), though with slight differences, in a form
according to which article 3 would have read:
“This Directive shall apply to all persons in both the public and
private sectors, including public authorities, with regard to:
(a) conditions for access to employment, self-employment and
occupation, unpaid or voluntary work including selection criteria and
recruitment conditions, whatever the sector or 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;” (added words italicised)
In an Explanatory Memorandum, the Commission described such amendments as
involving:
“Clarification of the material scope of the proposal, indicating that it
covers both the public and private sectors, including public
authorities. It is also stated that the proposal also applies to unpaid or
voluntary work and practical training ….”.
41. In the event, however, the Council, while substantially accepting (with a
qualification and some verbal reformulation) the amendment to the opening words
and while accepting the addition to article 3(1)(b), notably did not accept the
addition to cover “unpaid or voluntary work”. The Equality and Human Rights
Page 20
Commission suggests that was because that addition was a mere unnecessary
“clarification”. That is a misreading of the Commission’s Explanatory
Memorandum, where “clarification” is a word used only in relation to the
proposed amendment of the opening words of article 3. Further, it is not credible to
suggest that the reason for the Council’s failure to adopt the one proposed
alteration in this area which it did not adopt is that it regarded the addition of the
words “unpaid or voluntary work” as unnecessary and intended that, without them,
the Directive would cover voluntary activity. The appellant’s and the Equality and
Human Rights Commission’s current case thus runs contrary to a deliberate choice
made by the relevant European legislator.
42. Seventhly, and linking with the sixth point, the Commission has kept the
implementation in national legal systems of the Framework Directive under
review, but never suggested that the United Kingdom or any Member State has
failed properly to implement this by failing to include voluntary activity. As
regards the United Kingdom, the only points identified in the Commission’s
reasoned opinion of 20 November 2009 (IP/09/1778) relate to the absences of any
clear ban on “instruction to discriminate” and of a clear appeals procedure in the
case of disabled people and to the breadth of exceptions to the principle of nondiscrimination on the basis of sexual orientation for religious employers. The
general significance of volunteering is however a matter of which any European
institution must be well aware. The years 2001 and 2011 were International Years
of Volunteers; the Opinion of the Economic and Social Committee on Hospice
work — an example of voluntary activities in Europe (2002/C 125/07) contained
extensive general references to voluntary work, described as a major force in
shaping social solidarity and participative democracy; the same Committee’s
Opinion on the European Year of Volunteering 2011 (2010/C 128/150) suggested
(para 4.1.1) a need for a “legal framework …. to secure the infrastructure required
for voluntary work at local, regional, national and European level and to make it
easier for people to get involved”, without any suggestion that such a framework
already existed in the field of discrimination; and in para 4.5 it added that “The
European Year of Volunteering 2011 should not blur the difference between paid
employment and unpaid voluntary activity, but rather seek to show how both are
mutually reinforcing.”
43. Eighthly, as I have indicated, neither the appellant nor the Equality and
Human Rights Commission suggests that all voluntary activity is covered by the
Framework Directive. A multi-factorial test would lead to uncertainty and
disputes, and, had some but not all voluntary activity been intended to be covered,
the Directive would surely have given some indication as to where the line should
be drawn. The bare term “occupation” was not only used for a different purpose, as
I have indicated; it would have been inadequate for the purpose of distinguishing
between voluntary activities within and outside the grasp of the Directive.
Page 21
44. Finally, I must address a submission made by the Human Rights
Commission praying in aid the Court of Justice’s bold interpretative approach to
Regulation (EC) No 261/2004 of 11 February 2004 in Sturgeon v Condor
Flugdienst GmbH (Joined cases C-402/07 and C-432/07) [2009] ECR I-10923 and
in Nelson v Deutsche Lufthansa AG and TUI Travel plc v Civil Aviation Authority
(Joined cases C-581/10 and C-629/10) (unreported) 23 October 2012. Those cases
concerned the position of air passengers whose flights were delayed for long
periods, rather than cancelled. The Regulation provided in terms for financial
compensation only in relation to cancellation (and then only if any re-routing
offered involved a delayed arrival at destination of more than two to four hours,
depending on the length of scheduled flight): see article 5 read with article 7.
Delay in terms only entitled passengers to certain assistance: see article 6 read with
articles 8 and 9. Notwithstanding this, the Court of Justice said that passengers
subject to delays involving arrival at destination more than two to four hours late,
depending on the length of the scheduled flight, were in a comparable position to
passengers whose flights were cancelled, and must be given equivalent financial
compensation. It did this however with reference to the Regulation’s explanatory
recitals and as a matter of interpretation, and on the express basis that such an
interpretation “does not disregard the EU legislature’s intentions”: Nelson and Tui,
para 65. In the present case, those in remunerated work and volunteers are not in
comparable positions, and it would contradict the European Union legislature’s
intention to treat the Directive as intended to cover volunteers.
45. All these considerations, and particularly the first seven, combine in my
opinion to lead to a conclusion that the Framework Directive does not cover
voluntary activity.
A reference to the Court of Justice?
46. The appellant and the Equality and Human Rights Commission submit that
the correctness of any such conclusion is at the least open to reasonable doubt, and
that it is incumbent on this Court, as the final United Kingdom court, to make a
reference to the Court of Justice for a ruling, pursuant to the principles stated in
CILFIT Srl v Ministry of Health (Case 283/81) [1982] ECR 3415 and reiterated in
Junk v Kühnel (Case C-188/03) [2005] ECR I-885. We were reminded that the
only relevant exception to making a reference contemplated under these principles
was identified in CILFIT in these cautionary terms:
“16 Finally, the correct application of Community law may be so
obvious as to leave no scope for any reasonable doubt as to the
manner in which the question raised is to be resolved. Before it
comes to the conclusion that such is the case, the national court or
tribunal must be convinced that the matter is equally obvious to the
Page 22
courts of the other Member States and to the Court of Justice. Only if
those conditions are satisfied, may the national court or tribunal
refrain from submitting the question to the Court of Justice and take
upon itself the responsibility for resolving it.
17 However, the existence of such a possibility must be assessed on
the basis of the characteristic features of Community law and the
particular difficulties to which its interpretation gives rise.
18 To begin with, it must be borne in mind that Community
legislation is drafted in several languages and that the different
language versions are all equally authentic. An interpretation of a
provision of Community law thus involves a comparison of the
different language versions.”
47. The question is however whether there is scope for reasonable doubt, and,
when the possibility is suggested that other national courts or tribunals may not
find a particular conclusion obvious, the starting point, consistent with the
principle of mutual trust between different national jurisdictions which is
fundamental in European law, is that other national courts will not entertain
unreasonable doubts or arrive at an unreasonable conclusion. Whether a
conclusion is open to reasonable doubt must, however, be assessed having regard
not only to all relevant characteristic features of European law, but also to the
different and equally authoritative language versions in which the relevant measure
has been enacted.
48. In my opinion, there is no scope for reasonable doubt about the conclusion
that the Framework Directive does not cover voluntary activity. The position
having regard to the English language material is clear. None of the other language
versions to which the Court was referred throw any doubt on this conclusion. On
the contrary, they reinforce it.
49. Reference was made to two recommendations of the French equivalent of
the Equality and Human Rights Commission, the Haute Autorité de Lutte contre
les Discriminations et pour l’Egalité (“HALDE”). Both were issued by HALDE’s
president, M Louis Schweitzer. In the first, Ruling 2007/117, HALDE treated the
exclusion of eight mothers from taking part in educational and/or school trips
because they wore the hijab as covered by the Framework Directive. It based this
firstly on article 9(2) of the European Convention on Human Rights but, secondly,
also on a statement (in translation) that:
Page 23
“…. EC directive 2000/78 covers ‘the conditions governing access to
employment, non-salaried activities or work’. By means of this
expression the Community legislator sought to prohibit any
discrimination based on religion or convictions, and in particular
with regard to access to unpaid or voluntary activities.”
50. In the second, Ruling 2009/24, HALDE addressed the situation of a 41-year
old member of the public, who was refused permission to appear as a contestant in
a TV singing contest to identify new young talent on the grounds that the
competition rules restricted entrants to those under 34. According to the Ruling the
French legislator had by means of law no. 2008-496 of 27 May 2008 given effect
to the requirement under the Framework Directive to combat discrimination by
providing that
“any discrimination, direct or indirect, based on … age ….is
forbidden …. in the area …. of work, including casual/self-employed
or non-salaried work ….”.
HALDE, after saying that this law must be interpreted in light of the Framework
Directive, continued (in translation):
“Now, according to the preparatory work [travaux préparatoires], the
Community legislator understood the term work [“travail”] in a
broad sense, in order to cover salaried activities, non-salaried and
casual/self-employed activities and voluntary activities.”
51. HALDE’s two Rulings are not reasoned beyond this brief explanation. As I
have indicated (paras 37 to 41 above), the travaux préparatoires in fact lead to an
opposite conclusion to that which HALDE suggested. We were told by Mr Robin
Allen QC on behalf of the Equality and Human Rights Commission that HALDE’s
recommendations that there had been unlawful discrimination were in each case
accepted by the relevant Ministers to whom they were addressed. But any steps
which may have been taken in that respect, about which we have no information,
cannot inform the true meaning of the Directive. HALDE’s two Rulings cannot
carry any greater weight in the construction of the Directive than the Equality and
Human Rights Commission’s submissions before us. Both are entitled to serious
consideration, but for the reasons given I am not persuaded that either
demonstrates any scope for reasonable doubt about the true meaning and effect of
the Directive.
Page 24
52. The appellant also referred to Belgian Laws aimed at combating
discrimination, one dated 25 February 2003 (Moniteur belge, 17 March 2003, p
12844) and the other replacing it dated 10 May 2007 (Moniteur belge, 30 May
2007, p 29031). The former was stated to cover:
“les conditions d’accès au travail salarié, non salarié ou indépendant,
y compris les critères de sélection et les conditions de recrutement,
quelle que soit la branche d’activité et à tous les niveaux de la
hiérarchie professionnelle, y compris en matière de promotion, les
conditions d’emploi et de travail, y compris les conditions de
licenciement et de rémunération, tant dans le secteur privé que
public;
la nomination ou la promotion d’un fonctionnaire ou l’affectation
d’un fonctionnaire à un service;
la mention dans un pièce officielle ou dans un procès-verbal; …
l’accès, la participation et tout autre exercice d’une activité
économique, sociale, culturelle ou politique accessible au public.”
53. The provision relating to access does not on its face cover volunteers.
Neither the appellant nor the Equality and Human Rights Commission suggests on
the present appeal that voluntary activities are covered by the words in the French
version of the Framework Directive “d’accès …. aux activités non salariées ….”.
However, an informal English translation on the website of the Centre pour
l’égalité des Chances et la Lutte contre le Racisme, the Belgian equivalent of the
Equality and Human Rights Commission, translates “conditions d’accès au travail
salarié, non salarié ou independent” as “conditions for access to gainful, unpaid or
self-employment”. We were not shown any authority substantiating this
translation, but, whatever the position in that regard, it is also clear from the
extract above that the law of 2003 goes in some respects wider than the
Framework Directive.
54. Despite this, the Belgian law of 2003 attracted some adverse comment from
the European Commission and was replaced by the law of 2007 which had the
overt aim of both transposing as well as going substantially wider than the
Directive in various respects. The relevant Projet de loi of 26 October 2006 (Doc
51 2722/001) stated that Belgium “a affiché de grandes ambitions en matière de
lutte contre la discrimination et s’est placée à l’avant-garde des États européens en
la matière”. Article 5.2 of the 2007 law identifies its scope as being:
Page 25
“En ce qui concerne la relation de travail, la présente loi s’applique,
entre autres, mais pas exclusivement, aux : 1°conditions pour l’accès
à l’emploi, y compris entre autres, mais pas exclusivement : -les
offres d’emploi ou les annonces d’emploi et de possibilités de
promotion, et ceci indépendamment de la façon dont celles-ci sont
publiées ou diffusées; -la fixation et l’application des critères de
sélection et des voies de sélection utilisés dans le processus de
recrutement; -la fixation et l’application des critères de recrutement
utilisés lors du recrutement ou de la nomination; -la fixation et
l’application des critères utilisés lors de la promotion; -l’affiliation en
tant qu’associé à des sociétés ou associations de professions
indépendantes.”
Nothing in this text expressly covers voluntary activity, but the Projet de loi stated
that:
“Le champ d’application ne vise pas seulement le travail salarié,
mais également le travail indépendant et le bénévolat”.
55. The appellant is therefore correct in submitting that, in the context of the
law of 2007, the word “travail” appears to have been considered sufficiently broad
to apply to volunteers. However, bearing in mind that the Belgian legislation goes
substantially wider than the Framework Directive, this sheds no real light on the
actual scope of the Framework Directive or on the attitude which a Belgian court,
if the point could ever arise before one, would take to this.
56. It was also suggested that the United Kingdom had regarded the scope of
the Directive as extending to certain voluntary activities, by virtue of the
amendments which were made by the Disability Discrimination Act 1995
(Amendment) Regulations 2003 introduced under the European Communities Act
1972 to cover office-holders generally and practical training. The latter (practical
training) is however explained (as the government’s explanatory notes at the
consultation process explained it: para 128) by article 3(1)(b) of the Directive. But
the former (office-holders) does include persons not working for remuneration or
under contract, and so goes beyond the scope of the Directive as I have interpreted
it. Section 2(2)(b) of the 1972 Act permits provision “for the purpose of dealing
with matters arising out of or related to any such obligation or rights [i.e. European
Union obligations of the United Kingdom and rights to be enjoyed under or by
virtue of the European Union Treaties] ….” It is unnecessary to go into the
question how far this justifies regulations generally or the present regulation
regarding office holders which go beyond the strict scope of European legal
requirements. Suffice it to say that it is certainly not unusual for regulations to go
beyond such requirements, and that it is in any event clear that no inference can be
Page 26
Page 27
drawn that the United Kingdom thought that the Directive applies generally to
voluntary activity. The regulations were, on the contrary, accompanied by an
explanatory booklet, issued by the Minister for Women, Barbara Roche, stating
(para 24) that “Unpaid volunteers will not be covered”.
Conclusions
57. It follows that I do not regard this as a case in which a reference to the
Court of Justice is either required or appropriate, and I would dismiss this appeal
from the concurrent decisions below on the ground that, leaving aside the subject
matter of guidance, training and work experience covered by article 3(1)(b), article
3 is not directed to voluntary activity.
58. It is in these circumstances unnecessary to go into the interesting questions
which would have arisen, had I concluded that article 3(1) did generally cover
voluntary activity. Assuming (without expressing any view) that the principle in
Marleasing would not have assisted the appellant, because of the unequivocal
stance taken by Parliament in section 68 of the Disability Discrimination Act 1995,
the question would still have arisen whether the principle in Mangold might not
have been extended to protect the appellant (see para 11 above). That question
might well have required to be referred to the Court of Justice. That need does not
however, in the event, arise. The appeal falls accordingly to be dismissed as stated
in para 57 above.