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Volunteer could not claim disability discrimination because he had no employment contract, judge rules

A paid army volunteer could not claim he had been discriminated against due to disability when work for the army stopped because he did not have an employment contract, an employment appeal tribunal judge has ruled.04 May 2011

M Breakell, an adult instructor with the Shropshire Army Cadet Force (ACF) had argued that he was employed under the ACF's terms of service and had been paid for his help at training days.

Mr Justice Birtles' ruling backed the decision of the judge at the original employment tribunal who had said he had no authority to decide on the issue since it did not come under the employment terms in UK disability discrimination law.

"The Employment Judge was correct as his factual findings were ... there was no obligation on the [Shropshire ACF] to provide work ... there was no obligation on [Breakell] to accept work offered ... he was paid only for the days he worked ... [the section on governing how an employee's period of employment is worked out under the] Employment Rights Act 1996 was not argued," Mr Justice Birtles said in his appeal ruling.

Breakell was a volunteer and not employed with the Shropshire Army Cadet Force (ACF) and was therefore not covered by terms of employment under the Disability Discrimination Act (DDA), Mr Justice Birtles ruled.

The DDA states "'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".

"A person is not an employee under [the DDA] unless under a contractual obligation personally to do work," Mr Justice Birtles said.

Mr Justice Birtles rejected Breakwell's argument that relied on a European court description of an employment relationship that said someone is employed when they are paid for a service.

Breakell's lawyer had argued that the ACF's terms of service formed an employment contract as it included details of what duties instructors should fulfil, how the volunteers might be paid for attending training days and how the ACF might terminate its agreement to the instructor helping out.

Breakell had a contract with the Shropshire ACF that extended beyond his participation at training days as Breakell was obliged to help out, and was often paid for doing so, at the training days, Breakell's lawyer argued.

The ACF's lawyer said that Breakell had to prove that their terms of service contained an obligation on him to do work for them. Only then would the ACF had been 'mutually obliged' to honour contract terms, he had argued.

"My conclusion is that mutuality of obligation is not a condition of a contract for services. The Employment Judge found on the facts that ...'[Breakell] was not under any obligation to do any of the work provided. In practice what happened is that [the Shropshire ACF] provided a list of training days and [Breakell] chose those which he wished or was able to attend "within the limits of (his) available time". There was no obligation on him to attend any training days'," Mr Justice Birtles said.

"If I am wrong about that and there is indeed a requirement under a contract for services for mutuality of obligation as argued for by [Shropshire ACF's lawyer] then again [Breakell] must fail, because not only did the Employment Judge find that [Breakell] was not under any obligation to do any of the work provided but also that the [Shropshire ACF] was not under any obligation to provide any work for [him] to do," the judge said.

"Put simply, [Brekell] fails on the facts as found by the Employment Judge that there was no mutuality of obligation in this case," the judge said.

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