Breakell v Shropshire Army Cadet Force UKEAT/0372/10/RN

C was an Adult Instructor in the Army Cadet Force. He was a volunteer and was not paid. The ET held that he
was not a worker within the meaning of DDA 1995, s.68(1) and so could not make a claim of disability
discrimination. C appealed on 3 grounds: (i) that the finding that C was not obliged to do work was perverse; (ii)
that the finding that there was no mutuality of obligation was wrong; and (iii) that the ET should have found that
C was an employee when he was actually at work.

Facts

C was required to train cadets for the Army Proficiency Certificate and also to carry out administrative duties.
Although he was under a duty to comply with instructions given to him by his superior officers the ET found that
R was not under any obligation to provide any work for C and that C was not under any obligation to do the work
that was provided. The ET therefore considered that there was no mutuality of obligation and that he was not a
worker under DDA 1995, s.68.

Held

The appeal in this case concerned the application of DDA 1995, s.68 (and Equality Act 2010, s.83). This section of the DDA 1995 requires a person to be employed under a contract of or for services before they are entitled to the protection against discrimination that is afforded to employees. The EAT rejected the appeal. C argued firstly that the decision that there was no mutuality of obligation between the parties was perverse. HHJ Birtles held that the Tribunal was entitled to find that C had no obligation to work and rejected C’s perversity argument. This had fatal consequences for the remaining grounds of appeal. The second ground of appeal was that the DDA 1995, s.68 applied where there was an obligation on the employee to do work (s.68): it did not require the employer to have an obligation to provide work. In other words C argued that “a contract personally to do any work” did not require mutuality of obligation. HHJ Birtles rejected this second ground of appeal on the basis that the Tribunal had properly found that there was no obligation on the employee in any event. Interestingly, HHJ Birtles stated, obiter, that he did not consider that mutuality of obligation was a necessary element in a contract for service. The third ground of
appeal was that C was an employee when he was actually at work. This was also rejected on the basis that the Tribunal had held that there was no mutuality of obligation.

Comment

The position at present remains that volunteers working without a contract are not protected by the equalities legislation. If a Tribunal finds that there is no obligation upon an employer to provide work and no obligation on the worker in question to do it, then the Equality Act 2010 will not apply. As an aside, the most interest element of this case is HHJ Birtles’ obiter comment that mutuality of obligation is not required in a contract for services: something which many employment lawyers may find rather controversial!

The full transcript is available here:

http://www.bailii.org/uk/cases/UKEAT/2011/0372_10_1104.html