E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case no 4103727/2020 (V) Held remotely on January 2021 Employment Judge: W A Meiklejohn Miss S Massey v Project Trust — 2020

Miss Massey applied to Project Trust for an overseas volunteering placement in January 2020. She attended the selection course in February 2020, having identified that she had autism, but was told on 25 February 2020 that she had not been selected. The tribunal recorded that the application materials described participants as volunteers, that selected applicants signed a Code of Conduct, and that the scheme involved fundraising targets, a selection-course contribution, travel and insurance arranged by the respondent, and a living allowance intended to cover out-of-pocket expenses.

On time bar, the tribunal held that the complaint was out of time if the relevant act was the rejection letter of 25 February 2020, because the primary deadline under section 123 EqA was 24 May 2020 and ACAS early conciliation was not notified until 9 July 2020. It nevertheless extended time on the just and equitable basis. In reaching that conclusion, it considered the 47-day delay, the claimant’s lack of knowledge about tribunal time limits, the information she and her mother received from ACAS, the impact the rejection had on her, the existence of documentary evidence, and the overall balance of prejudice.

The complaint still failed on jurisdiction. The tribunal accepted that there would have been a contract between the parties if the claimant had been selected, but held that it would not have been a contract of employment. It found that the respondent would not have exercised day-to-day control over the claimant on placement, the work would have been undertaken for the Project Host rather than for the respondent, and the claimant would have been a volunteer engaged in voluntary activity. The tribunal treated the living allowance as akin to expenses rather than pay for work done and relied on X v Mid Sussex Citizens Advice Bureau. It therefore held that section 39 EqA did not apply because the proposed arrangement was not 'employment' within section 83 EqA, and the complaint was dismissed.