COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
MR JUSTICE BURTON
UKEAT/0220/08 and UKEAT/0511/08
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ELIAS
LORD JUSTICE TOMLINSON
|- and -
|MID SUSSEX CITIZENS ADVICE BUREAU
|(1) EQUALITY & HUMAN RIGHTS COMMISSION
(2) SECRETARY OF STATE FOR THE HOME DEPARTMENT
(3) THE CHRISTIAN INSTITUTE
for the Appellant
Mr Paul Michell and Mr Ed Williams (instructed by Bates, Wells & Braithwaite LLP)
for the Respondents
Mr Declan O'Dempsey and Ms Olivia-Faith Dobbie instructed by the First Intervener
Ms Kassie Smith instructed by the Treasury Solicitor for the Second Intervener
Mr John Bowers QC instructed by The Christian Institute for the Third Intervener
Hearing dates : 18 and 19 October 2010
Crown Copyright ©
Lord Justice Elias :
"binding in honour only … and not a contract of employment or legally binding".
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.
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.
"Worker" and "occupation".
"the term worker … cannot be defined by reference to the legislation of the Member States but has a Community meaning. Moreover, it cannot be interpreted restrictively".
It then defined the concept of "worker" as follows:
"... In order to be treated as a worker, a person must pursue an activity which is genuine and effective, to the exclusion of activities on such a small scale to be regarded as purely marginal and ancillary. The essential feature of an employment relationship 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."
The Disability Discrimination Act 1995.
'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.'
" '(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.'"
The appellant's case.
The hearings before the employment judge.
"X's arrangement with the CAB was neither for the dominant nor sole purpose of the vocational training. A by product of X's volunteering for the CAB was that she would receive training that could possibly be useful generally on her CV in the Welfare Rights and Advice field and possibly in obtaining a solicitor's training contract or para-legal work, but that was neither the sole nor the dominant purpose of the arrangement - it was to give advice as a volunteer."
"in practice it is likely that the experience of having been a volunteer is a very great advantage and is clearly relevant in obtaining paid positions at the CAB and indeed elsewhere."
"….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."
The decision of the EAT.
The grounds of appeal.
The domestic law argument.
The vocational training argument.
Employment or occupation?
"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."
Mr Lofthouse submits that whilst this definition is derived from the definition of "worker", it is not co-extensive with it. He cites certain kinds of office holders who provide services but who are not regulated by contract, as other examples of someone in an occupation. They are specifically covered by the 1995 Act.
"The recitals to the Directive and the structure and language of Article 3(1) as a whole indicate that it is concerned with discrimination affecting access to the means of economic activity, whether through employment, self-employment or some other basis of occupation."
It is submitted that work carried out voluntarily and for no remuneration is not a means of economic activity.
Lord Justice Tomlinson:
Lord Justice Rix: