Other legal issues around volunteer management

This page introduces you to some of the legal considerations around volunteer management. Our thanks go to Russell-Cooke LLP for providing the information for this resource.

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How do we legally define volunteers?

There is no single legal definition of volunteers and as such they are generally defined by simply not being employees or workers.

Volunteers do not have the same legal status as employees or workers and are not generally covered by employment legislation or the health and safety provisions and anti discrimination legislation that apply to employees.  In the main, organisations are free to accept or reject volunteers and end volunteer engagements without the need to give notice or follow disciplinary procedures.   

However, tribunals do not automatically accept the labels applied to a relationship by the parties.  They will therefore consider any contract in place and the reality of the relationship when deciding whether an individual is an employee, a worker or a volunteer.  

Organisations need to be aware of the risk that individuals they believe to be volunteers may in fact be workers or employees.  In the past, there have been cases where Tribunals have held that a volunteer is in fact an employee and is therefore able to pursue claims for unfair dismissal or discrimination.  Where volunteers are able to establish that they are in fact workers or employees, they may also be able to claim arrears of unpaid wages at the national minimum wage rates.      


Employees benefit from the rights afforded to workers as well as extensive employment rights which include: 

  • Protection from unfair dismissal (once they have accrued at least one year’s continuous service)
  • Protection from discrimination on the grounds of sex, race, disability, sexual orientation, religion, belief or age
  • Protection from dismissal and detriment on the grounds of trade union membership or activities or making a protected disclosure (‘whistle blowing’)
  • The right to a statutory redundancy payment (following accrual of at least two years’ service)
  • Statutory sick pay, maternity and paternity pay
  • Minimum periods of notice of the termination of their employment
  • The right to request flexible working and the right to time off to care for dependents

Workers have a more limited set of rights.  They are covered by the Working Time Regulations 1998 (the “WTR”) and the National Minimum Wage legislation.  Workers also have protection from discrimination on the prohibited grounds set out above, protection from detriment on the grounds of whistle blowing and they are entitled to pension contributions from their employer under the auto-enrolment scheme.  

Under the WTR, workers are entitled to a 20 minute rest break if they are required to work for 6 hours or more, weekly and daily rest breaks and 5.6 weeks paid annual leave.  In addition, the Regulations imposed a 48 hour limit on the working week unless a worker has signed an opt out.

Employers are also required to keep records of hours worked, breaks and if relevant, opt outs.  If an individual makes a complaint to the Health & Safety Executive (who is responsible for enforcing some of the WTR provisions) these records will be required to demonstrate workers’ breaks and working hours.  

The current national minimum wage rates (with the exception of the apprenticeship and accommodation offset rates) are as follows:

  • £6.50 per hour for workers who are 21 and over
  • £5.13 per hour for workers aged 18 to 20 (inclusive)
  • £3.79 for workers aged above compulsory school age and under 18

Note that these rates usually change each October.  You can see the current rates on the Gov UK website.


Section 44 of the National Minimum Wage Act 1998 sets out an exception for voluntary workers.  This provides that they will not be entitled to the national minimum wage if certain conditions are met.  

A voluntary worker: 

  • must be working for a charity, voluntary organisation, an association fund-raising body or a statutory body (i.e. local authority or a primary care trust)
  • must not receive any monetary payment for their services except payment in respect of expenses actually incurred or reasonably likely to be or have been incurred
  • must not receive any benefits in kind other than the provision of subsistence or accommodation as is reasonable in the circumstances.

If a voluntary worker is placed by a charity with another charity, voluntary organisation, associated fundraising body or a statutory body, the voluntary worker can receive monetary payments if the payments are solely for the purpose of providing subsistence. 

It is important to follow section 44 carefully.  If a voluntary worker’s payments do not comply with section 44, they will be treated as an ordinary worker and will be entitled to the national minimum wage at the applicable rate.  

The HMRC is responsible for the enforcement of the national minimum wage and they have powers to inspect records and premises and interview employers and employees.  If they believe that workers are not being paid the national minimum wage, the HMRC can issue enforcement notices requiring the employer to pay the national minimum wage and to make backdated payments if appropriate.  The HMRC can also issue penalty notices with a fine against employers who fail to comply.

The HMRC’s Employment Income Manual also indicates that reimbursement of expenses for volunteers will not normally give rise to any tax liability.  However, if volunteers are given additional payments, the HMRC may view these as wages and obligations to deduct income tax and national insurance will arise.  


Employment Status

When considering whether a person is an employee, an Employment Tribunal will consider the following factors:

  • Is the individual obliged to perform the work personally and what level of control is exerted over the individual?
  • Is there mutuality of obligation between parties; is the employer under a duty to provide work and is the individual under a duty to accept it.
  • Are there any other factors that are inconsistent with a contract of employment?    

Mutuality of obligation is the essential element of a contract of employment.  If an individual has the right to refuse work, they are unlikely to be employees, as there is no mutuality of obligation.  

When considering whether a person is a worker, an Employment Tribunal will look at similar considerations but the requirements are different:

  • Is there a contract (express or implied, verbal or written) to provide personal service?
  • The individual must not be carrying on a professional or business undertaking and providing a service to a client or customer when carrying out this contract.

Some case studies

Armitage v Relate [1994]

The Claimant was a volunteer counsellor for Relate.  She entered into a service agreement under which Relate would provide training and she would provide 600 hours of unpaid counselling.  If she failed to complete her hours, she was required to repay part of the costs of her training.  There was also the possibility of paid counselling work after volunteers had completed a certain number of hours.

The Tribunal found that there was a mutual obligation between Mrs Armitage and Relate to work for a certain number of hours in return for training and the expectation of paid work in the future.  The Claimant was therefore an employee and could pursue a claim of race discrimination.


Migrant Advisory Service (MAS) v Chaudri [1997]

Mrs Chaudri worked four days per week, from 10am to 1pm each day and received £40 per week in respect of her expenses but this did not relate to actual expenses incurred.  MAS paid Mrs Chaudri even when she was on sick leave or holiday.  

The Employment Appeal Tribunal held that the £40 payment amounted to wages and Mrs Chaudri was in fact an employee.  She was therefore entitled to pursue an unfair dismissal claim against the MAS.


Murray v Newham Citizens Advice Bureau [1999]

Mr Murray applied for a post as a trainee voluntary advisor at Newham CAB.  He argued that his application had been rejected due to his history of mental illness (he had suffered from paranoid schizophrenia, which was, at the time of his application, controlled by medication) and a violent incident that was connected to his schizophrenia.  He made a claim for disability discrimination.  

The Tribunal noted that if successful, a volunteer CAB advisor was required to sign an agreement.  Advisors were required to commit to a certain number of hours each week for a minimum length of time.  They were also required to notify their manager of absences and give reasonable notice if they wished to leave.  There was also a procedure for booking holidays.  

In return, advisors received formal and informal training and support and reimbursement for travel expenses.  The agreement also set out disciplinary and grievance procedures.  It was held that Mr Murray had been applying for employment and he was therefore able to pursue his claim for disability discrimination. 


Bruce v Dial House Chester [2004]

The Claimant, a wheelchair user, applied for a post with Dial House Chester, an independent charity.  At that time, a disability discrimination claim could not be brought against organisations employing fewer than 15 employees (this exemption has since been abolished).  

The Claimant argued that the organisation’s 50 volunteers were in fact employees.  The volunteers received reimbursement for travel expenses, a free meal and refreshments.  They were placed on a rota and required to undertake certain hours.  However, they were not required to give notice when they wished to leave and the contract did not refer to grievance, disciplinary or equal opportunities policies.  

The contract expressly stated that there was no intention to create legal relations and there was no minimum commitment.  It was held that the volunteers were not employees, as there was no mutual obligation.


South East Sheffield Citizens Advice Bureau v Grayson [2004]

Ms Grayson was employed by the CAB as a (paid) home visiting and outreach worker.  She submitted a claim of disability discrimination, arguing that the CAB had failed to make reasonable adjustments to accommodate her rheumatoid arthritis.  At the time, the exemption for employers employing fewer than 15 employees was in place.  The CAB had a few employees and a large number of volunteers.  Ms Grayson therefore had to show that the volunteer advisers were employees in order to pursue her claim.

The volunteers were placed on a rota and were given volunteer agreements.  The agreement provided that “the usual minimum weekly commitment is for 6 hours including interviewing and writing up case records.  In addition, you will need reading time to keep up to date and to attend workers meetings and training sessions.  We will be flexible about when you work within the constraints of drawing up the rota.”  There was no sanction for failing to attend, other than removal from the rota.

Expenses were reimbursed and volunteers were asked to give as much notice as possible when leaving.  They were also asked to comply with a confidentiality policy and the agreement stated that volunteers were expected to retire at 70.  The CAB also indemnified its’ volunteers against negligence claims arising from their advice.  Throughout, the agreement referred to ‘reasonable expectations’ rather than binding requirements or obligations.

The Tribunal took the view that the advisors were employees.  However, the Employment Appeal Tribunal overturned this decision.  They held that the essential element of the employment relationship was the provision of valuable consideration (such as wages or valuable training or qualifications) in return for which the individual is obliged to work personally for the employer. 

The crucial question was whether there was a binding mutual obligation between Ms Grayson and the CAB to provide and perform work.  The EAT noted that the basic nature of voluntary work was that it was done without reward, with the consequence that volunteers were free to withhold their services without punishment.  Whilst the CAB asked volunteers to comply with the rota and give notice if they were unavailable or leaving, they would have not have any claim for breach of contract against a volunteer if they failed to turn up for a shift or give notice.  Therefore, the volunteers were not employees.  


Melhuish v Redbridge Citizens Advice Bureau [2005]

Mr Melhuish volunteered for one or two days per week.  He did not have a contract and had no rights to holiday, sick pay or notice.  He was not subject to any disciplinary or grievance procedures and if he failed to attend, he was not disciplined.  He did receive some training and received reimbursement for actual expenses incurred.  The Tribunal held that Mr Melhuish did not have employee status.  


Breakell v West Midlands Reserve Forces and Cadets Association [2010]

Mr Breakell was an Adult Instructor for an Army cadet force. He sought to bring a discrimination claim and in order to be successful, his role had to come under the definition of employment in the discrimination legislation. The organisation’s terms of service provided that Adult Instructors “may” be paid for attendance (to compensate for earnings lost on days individuals volunteered) but not normally for more than 28 training days per year. In fact, instructors were paid for a time, but the MOD later cut funding for this. Adult Instructors were referred to as “voluntary youth workers” in the respondent’s Terms of Service.

The EAT held that there was “no contract personally to do any work” and that Mr Breakell was not in employment. There was no obligation on the respondent to provide work and no obligation on Mr Breakell to undertake work. The fact that a volunteer was paid a capped allowance did not mean the volunteer was under a contractual obligation to do work.


X v Mid Sussex Citizens Advice Bureau & Another [2012]

The Claimant was a CAB volunteer who was asked to cease her volunteer work.  She worked 4-5 hours per week and had a “volunteer” agreement with CAB which stated that it was “binding in honour only... and not a contract of employment or legally binding”. When asked to step down as a volunteer, X brought a claim for disability discrimination.

The employment tribunal, EAT, Court of Appeal and Supreme Court all held that the employment tribunal had no jurisdiction to hear the claim as X was a volunteer and volunteers fell outside the scope of the EU Equal Treatment Framework Directive and the Disability Discrimination Act 1995. Note that although the Disability Discrimination Act 1995 has been replaced by the Equality Act 2010 the law remains the same in this area.

They key point in determining that X was not an employee was the fact that X had no legally binding contract of employment.


Practical tips

  • Reimburse volunteers for genuine expenses only.  Obtain receipts and keep records of the expenses paid.  Payments that do not relate to actual expenses may be viewed as wages by a Tribunal (and the Jobcentre or HMRC, which will have separate implications for tax and the volunteer’s benefits).    
  • Do not provide training beyond what is required for the volunteering role as this may amount to a payment they receive in return for their work and lead to a contract of employment.  Training that leads to qualifications that would otherwise be expensive to obtain may well be viewed as a benefit.
  • Arrangements should be documented in a written agreement with the volunteer
  • Written volunteer agreements should refer to ‘reasonable expectations’, not binding requirements.  If volunteers need to commit for a certain period, this should be phrased carefully.  It is advisable to express this as a hope that volunteers will stay a certain period or suggest that they will benefit more from the experience if they volunteer a certain number of times. 
  • Sanctions for non-compliance should not be imposed on volunteers.  In particular, volunteers should not be subjected to disciplinary procedures.  
  • It is advisable to expressly state that volunteers cannot be required to work at any time and that there is no obligation to provide the volunteers with work on an ongoing basis.  Do not use employee related terminology, such as ‘dismissal’ and ‘sick leave’.  

It is advisable to set out separate policies for volunteers on issues such as confidentiality, data protection, equal opportunities and a complaints procedure for volunteers to raise issues.   In the Grayson case, volunteers were asked to comply with certain policies.  While this places obligations on volunteers when they are actually volunteering, volunteer agreements should make it clear that there is no obligation on volunteers to keep volunteering over a certain period.

Interns

The term “intern” is generally used to refer to students or graduates receiving practical work experience. Interns are often not paid for their work and the intention is that they work as volunteers, rather than as employees or workers.

The same considerations as above apply when determining whether the individual is in fact a volunteer or whether they have acquired status as a worker or employee. If an individual is engaged in work which would ordinarily be performed by a paid worker or employee, it will be difficult to argue that the individual is a volunteer. The organisation will need to show that there is no obligation on the individual to perform work in order for the relationship to be considered voluntary.

Work experience placements of less than one year which are carried out as part of a UK higher or further education course are exempt from the national minimum wage.

Some practical examples of interns having employment or worker rights:

  • An “intern” engaged by a self-employed production designer as an assistant on an “expenses only” basis and was held to be entitled to the national minimum wage.
  • A person who worked for a publishing company for two months and was responsible for a team of writers was held to be a worker.

Equal Opportunities 

In some cases, taking on volunteers may be viewed as the provision of a service.  It is currently unlawful to discriminate in the provision of services on the grounds of sex, race, disability, religion or belief, sexual orientation or age.  

Volunteers & Benefits

The general position is that voluntary work will not affect entitlement to benefit, but the volunteer should notify the Jobcentre and continue to comply with the conditions of their particular benefit (i.e. Jobseeker’s Allowance, Incapacity benefit or Employment and Support Allowance).

As Jobseeker’s Allowance recipients must show that they are available and actively seeking work, it can assist volunteers if the organisation provides a letter to the Jobcentre confirming that the volunteer is available for interview with 48 hours’ notice and available for work with 1 week’s notice.  It may also be useful to provide a telephone number where volunteers can be contacted but if this done, it is important to ensure that any messages are passed on promptly.  

Notional Earnings

Reimbursement for expenses incurred will not be treated as earnings.  However, in certain cases, the Jobcentre will take the view that a person should be paid for the work they are doing.  If this is the case, they will deduct the wages they believe the individual should receive from their benefit payments.  Voluntary work is generally excluded from this but organisations should ensure that the roles given to volunteers are reasonable.  

Intellectual Property 

Some volunteers may carry out creative or technical work which may give rise to intellectual property rights.  While intellectual property rights arising out of the normal duties of employees may belong to the employer, there is no such presumption in relation to volunteers.  It is therefore advisable to include a clause in the volunteering agreement that they will assign any intellectual property rights to the organisation.

When volunteers are being asked to sign agreements, it is important to reiterate that there is no mutuality of obligation to avoid creating a contract of employment.  

Health & Safety 

Employers are under specific duties to provide employees with a safe working environment.  While this duty does not cover volunteers it is good practice to ensure that the health and safety of volunteers is protected.  In addition, organisations are under a legal obligation to protect the health and safety of members of the public, which would include volunteers.  

If a volunteer suffers injury due to the negligence of the organisation, its employees or other volunteers, they may be able to pursue a personal injury claim against the organisation.  It is therefore advisable to follow the same health and safety procedures for both volunteers and employees.   

Insurance

Liability Insurance

While there is no legal requirement to take out insurance in respect of the risk of a personal injury claim from a volunteer, it is advisable to extend employer’s liability insurance (which covers employees) to expressly include volunteers.  Alternatively, the organisation’s public liability insurance could be extended to cover volunteers.

Employers are vicariously liable for the negligent acts of their employees.  It is unclear whether this principle would also apply to a volunteer acting in the course of his/her work for an organisation.  As a matter of good practice, it is advisable to protect volunteers from such claims.  Liability insurance should be expressly extended to cover claims caused by the act or omission of a volunteer and should also include an indemnity for the volunteer in the event that a third party successfully pursues a claim against the volunteer.  

Motor Insurance

If a voluntary organisation has its own vehicles which it allows volunteers to drive, it will need to arrange insurance.
If volunteers use their own vehicles in the course of their voluntary work, the organisation will need to check that the volunteer is covered by their existing policy. Some insurers charge an extra premium for volunteer drivers or increase the excess on the policy. The organisation should also ensure the volunteer’s licence and MOT certificate are valid and up to date.

If the volunteer is receiving payments in excess of reimbursement for expenses and the HMRC mileage allowance, they may be actually be an employee and their driving is likely to be business use. 

Disclaimer

This material does not give a full statement of the law.  It is intended for guidance only, and is not a substitute for professional advice.  No responsibility for loss occasioned as a result of any person acting or refraining from acting can be accepted by the authors or Russell-Cooke.


Jane Klauber
Charity Team
Russell-Cooke LLP
2 Putney Hill, Putney, London SW15 6AB
T: 020 8394 6483
E: jane.klauber@russell-cooke.co.uk

© Russell – Cooke LLP April 2014