Employment: volunteers don’t have discrimination protection

In a decision that has come as a relief to charities, the Supreme Court upheld the decision of the Court of Appeal that an unpaid volunteer was not covered by UK or EU discrimination law.

The volunteer had a written volunteer’s agreement with Mid-Sussex Citizens Advice Bureau but was asked to stop volunteering after continuously not turning up.  The volunteer alleged however that she had been asked to stop as a result of a disability (she was HIV positive) and brought a discrimination claim.

The Supreme Court agreed with the Court of Appeal and Tribunal decisions that the volunteer was not an employee and the legislation did not apply.  The Supreme Court held that the legislation could not be read to cover volunteers and nothing in the process leading up to its adoption suggested it had been intended to cover unpaid workers.

It is good news for charities who can now be certain that volunteers are excluded from discrimination protection (which would cover on the grounds of sex, race, age, sexual orientation and religion as well as disability which featured in the Mid-Sussex case).

However, whilst the exclusion of volunteers from discrimination protection is now clear, the question of whether an individual is a volunteer without worker or employment status is often not a matter of clarity, as it is determined not by a person’s job title but by the facts of each case.

Sarah Winter
Business – Corporate and Commercial, Employment

Asbos for Landlords

ASBOs entered common parlance as a result of the provisions of the Anti-Social Behaviour Etc. (Scotland) Act 2004 which aim to give Local Authorities and the Police powers to control anti-social behaviour at a particular location by named persons.    Less well-known are Anti-Social Behaviour Notices (ASBNs) which may be served on the landlord of any house where it appears to a Local Authority that the tenant is engaging in anti-social behaviour at, or in the locality of, a relevant house situated within the Authority’s area.

Such Notices have rarely, if ever, been used by Local Authorities thus far however the City of Edinburgh Council recently served ASBNs on the landlord of a city property which was let out by the landlord to weekend parties of up to 20 visitors to the city.  Some of the parties, but not all, would be regarded as stag or hen parties.  The Council has recently announced that it wishes to discourage stag and hen parties from visiting the city due to the incidence of anti-social behaviour associated with such groups.  It seems clear that the use of ASBNs will be part of their strategy in their attempts to do so.

The ASBNs served required the landlord to take remedial action which was intended to reduce the prevalence of anti-social behaviour within the let premises or in entering or leaving the premises.  The landlord was prepared to comply with the remedial action specified by the Local Authority with the exception of a direction that the number of occupiers/visitors to the property should be restricted to 8 at any one time rather than parties of 20.   No discernible logic was given by the Local Authority for the restriction in numbers the practical effect of which was to render the landlord’s business unprofitable and unviable.  The Local Authority appears to have proceeded upon a broad assumption that merely reducing numbers would in itself reduce anti-social behaviour.   Another practical consequence of the restriction in numbers placed the landlord in breach of contract in relation to forward bookings taken from guests for 7 months in advance prior to the issue of the ASBN. 

The landlord instructed that a Judicial Review should be launched to bring the Local Authority’s decision in relation to the restriction on numbers under review and to seek interim suspension of the ASBN insofar as it purported to restrict the numbers which can lawfully occupy the property in question.   At a recent Hearing for interim suspension the Judge decided that the restriction on the number of occupants imposed by the Council was within the range of reasonable decisions available to the Local Authority.  He took the view that such a restriction was part of a package of remedial steps that the Local Authority had directed the Landlord to take to address the anti-social behaviour complained of and it was reasonable for the Council to consider that a reduction in numbers would be likely to reduce the incidence of anti-social behaviour.  

The consequences of not complying with the terms of an ASBN are serious.  The Local Authority can apply to the Court for an Order that no rent should be payable by any person who occupies the landlord’s property and/or can apply for a Management Control Order the effect of which would be to transfer to the Local Authority for a period not exceeding 12 months all of the obligations of the landlord under the tenancy or occupancy arrangement under which the house is occupied.

Ultimately the landlord can also face criminal prosecution for failure to comply with the ASBN.

Given the draconian powers given to Local Authorities in these regards a landlord who is either threatened with or has been served with an ASBN would be well advised to take detailed legal advice at the earliest possible opportunity.

John Mitchell
Partner