“Volunteer: A person who freely offers to take part in an enterprise or undertake a task” (Definition from the Oxford Dictionary)
The survival of many charitable organisations heavily relies (and in some cases, wholly depends) on the help of generous volunteers. The legal status of the relationship between a volunteer and the recruiting organisation is often overlooked and with the above definition, you can be forgiven for assuming that there is no legal relationship. However, as I explain below, it’s not that simple.
The biggest risk where volunteers are used is that their status changes to that of a “worker” or “employee”. This is important because workers and employees are given certain entitlements and protections under employment law and being in breach of these could cripple the organisation. Workers and employees, for example, are entitled to be paid the national minimum wage, are entitled not to be “unfairly dismissed” and are covered by anti-discrimination laws. True “volunteers” are not.
Over recent years there has been an increase in the number of claims brought by volunteers for the way they have been treated, and as these cases show, the line between being a volunteer and an employee is easily crossed. So what can you do to avoid this happening and what other legal obligations do you have towards volunteers that you should be aware of?
- Defining the contractual relationship
The main difference between a volunteer and a worker or employee is the existence of a contract.
Consideration is an essential element of a contract. Volunteers are often reimbursed for expenses and are provided with training to enable them to fulfil their volunteering duties. However, if payments to volunteers becomes a regular and unnecessary occurrence and/or if non-essential training is provided, such payments/training can be interpreted as consideration (wages).
Control is also an important indicator of a change of status. If the demands on the volunteer are inflexible and there becomes an obligation on them to perform duties, this can indicate a worker/employee relationship.
To minimise these risks, organisations should:
- Construct volunteer agreements which clearly outline the relationship between the volunteer and the organisation. Stating that there is no intention to create any legal relations and referring to “expectations” rather than “obligations” is recommended.
- Ensure that any payments made are strictly to cover expenses and the training provided is no more than is absolutely necessary to enable the volunteers to perform their duties.
- Ensure that in practice any expectations on the volunteer are flexible and reasonable. Giving a volunteer the ability to refuse tasks and choose when to volunteer will point away from the existence of a binding contract.
- Health and safety
Organisations have a duty of care towards their volunteers. You therefore need to be aware of potential risks to volunteers, and take steps to reduce them where they are unacceptable. Undertaking risk assessments and ensuring that volunteers are aware of the organisation’s health and safety policies and procedures will help.
- Screening and DBS Checks
Where volunteering activity involves working with children and vulnerable adults, an enhanced check for regulated activity by the Disclosure and Barring Service (DBS) is necessary. There is also a duty to refer information to the DBS where an individual harms a child or vulnerable adult.
- Data Protection
Organisations have the same data protection obligations under the Data Protection Act 1998 towards volunteers as they do employees.
- Young volunteers
Whilst there are laws which restrict the employment of young people, these do not apply to volunteers. However, it is sensible to bear this legislation in mind and remember that young people have other demands on their time outside volunteering.
With the number of claims being brought by volunteers increasing, it is important that organisations get it right not just at the outset (with a well worded volunteer agreement), but also throughout the volunteer relationship.
If you need a volunteer agreement or are worried about crossing the employment status line, contact Annie Gray, an employment solicitor who regularly advises charities about how to protect themselves on 0113 220 6341.