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CAB volunteer wants to escalate employment rights case to Europe

Finance | Tania Mason | 21 Mar 2011

The former Citizens Advice volunteer whose attempt to achieve the same employment rights as an employee was rejected by the Court of Appeal recently, is seeking leave to appeal to the Supreme Court to try to have the case heard in Europe.

The volunteer, known only as Mrs X, wants the Supreme Court to refer the case to the European Court of Justice (ECJ).  Andy Williams, an associate at Charles Russell LLP which is representing Mrs X, said: “We think this issue is one that only the ECJ can answer because it is derived from a European Court directive.”

Mrs X claims she was asked to stop volunteering for the Mid-Sussex bureau after she contracted HIV.  She sued for discrimination at an employment tribunal in November 2009 but lost after the tribunal ruled that because there was no contract of employment, she was not entitled to the same rights as an employee.

Her case relied on European Equal Treatment Legislation which covers those in “occupation”, a term that she claimed should cover volunteers.

She appealed to the Court of Appeal but in January this year it upheld the original decision, ruling that Mrs X was not protected by the European Equal Treatment Legislation or the UK’s Disability Discrimination Act 1995.

The decision was widely hailed as a significant victory for voluntary sector organisations. Counsel Jason Galbraith-Marten, representing Citizens Advice, said: “Much of the sector is reliant on volunteers and cannot shoulder the financial burden which enhanced rights for volunteers such as X would bring.”

But Williams said that if the case was referred to the ECJ it could be “groundbreaking” for volunteers. “At the moment volunteers in all EU member states have no legal rights and this would make significant inroads into that,” he said.

Getting before the ECJ is a complex process, though.  The claimant has to ask the Court for Appeal for leave to take the case to the Supreme Court, which is the stage it is at now.  If the Court of Appeal says no then she has to ask the Supreme Court for leave to take it further. Williams admits it may be years before the case actually comes before the ECJ.

For a detailed analysis of the implications of the case by Andy Williams, click here.

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