Jane Klauber of Russell Cooke gave a legal update on the factors you should bear in mind when engaging volunteers with your organisation at our last charity HR Breakfast.
We hope you find the slides useful and we see you at our next event!
2. Volunteer Status
No single legal definition: volunteers defined by not
being employees or workers
Employment: mutuality of obligation, personal service,
control
Workers: personal service
A gift relationship
All documentation and arrangements should avoid
creating a legally binding contract
The discrimination legislation does not cover genuine
volunteers
3. Avoiding a legally binding contract
No payments except to reimburse verifiable expenses
Remove/minimise perks that could constitute consideration
e.g. training beyond what is required for the volunteer role
Avoid contractual language in the volunteer agreement,
refer to expectations and aspirations
Access to staff procedures are not appropriate
4. A Reminder of the Cases
Migrant Advisory Service v Chaudri 1997
Worked four mornings per week
Paid £40 “expenses”
Paid when on holiday or sick
Held she was an employee
5. Murray v Newham Citizens Advice
Bureau 1999
Claimant alleged disability discrimination based on his rejection as a
trainee adviser due to a history of mental illness
The agreement he would have to sign specified weekly hours, a
minimum period of notice of absences and reasonable notice before
leaving
He would receive training and support and reimbursement of travel
expenses
The agreement set out disciplinary and grievance procedures
Held: employed
6. South East Sheffield Citizens Advice
Bureau v Grayson 2004
Mrs Grayson claimed discrimination when her volunteer role was
terminated
Discrimination claim defended on basis she was not in employment
The fact the agreement was not signed and it stated it was to “clarify
the reasonable expectations” of the parties suggested it was not
intended to be legally binding though the fact it was not signed was not
conclusive.
Held: that an agreement that describes its purpose as such is not the
language of contractual obligation
7. ….continued
Reference to the “usual minimum commitment” of six hours per week
was an expectation; there was no sanction if minimum hours were not
worked
A request for as much notice as possible of leaving was a reasonable
component of the volunteer relationship, it did not imply a contract
The key issue was whether the agreement imposed contractual
obligations on the parties and it was held that Mrs Grayson could leave
at any time and the CAB would have no contractual remedy against
her
Held: she was not employed
8. Melhuish v Redbridge Citizens Advice
Bureau 2005
Unpaid volunteer was not permitted to take an unfair
dismissal claim
The existence of required standards did not create
mutuality of obligation
The provision of training courses was not enough to
represent remuneration
9. X v Mid Sussex CAB 2013
CAB adviser claimed disability discrimination arguing her volunteer
agreement amounted to employment or an arrangement for
determining who should be offered employment since CAB volunteers
often became paid advisers or was a work placement
Held: No legally binding contract
The volunteering was not for determining who should be offered paid
employment, the likelihood was only a by-product of volunteering
She was not undertaking a work placement because the volunteering
was not for a limited period nor for the sole or dominant purpose of
vocational training
10. Breakell v West Midlands Reserve
Forces and Cadets Association 2010
The fact a volunteer was paid a capped allowance
to compensate for earnings on days he
volunteered did not mean he was under a
contractual obligation to work
11. National Minimum Wage
Voluntary workers who work for charities are not entitled to NMW
if:
They receive no monetary payment except reimbursement of expenses
incurred or reasonably estimated as likely to have been incurred in the
performance of their duties
They receive no benefits in kind other than reasonable subsistence or
accommodation
May receive subsistence payments where engaged as a result of tri-
partite arrangements between two voluntary organisations
12. No specific NMW exemption Like volunteers, interns will be
workers and entitled to NMW if they provide a personal
service
Government guidance emphasises status does not depend
on job title and interns will be workers if they provide a
personal service
Work experience placements of less than a year as part of
a UK higher or further education course are exempt from
NMW
Interns
13. Interns (cont)
Any arrangement for payment or the promise of a
job at the end of the internship is likely to confer
worker status
Government is encouraging payment of interns.
CIPD report in 2010 found 37% unpaid
14. An intern engaged by a self-employed production designer
as an assistant on an “expenses only” basis was a worker
and entitled to NMW
An intern who worked for a publishing company for two
months, responsible for a team of writers, scheduling
articles, hiring new interns, was a worker and entitled to
NMW and holiday pay
The Cases
15. Vetting and Recruitment
Enhanced check for regulated activity with Disclosure and
Barring Service if working with children and vulnerable
adults
Data Protection
Same obligations as for employees and the Vol agreement
should contain appropriate provisions
Intellectual Property
IP rights will not automatically vest in the employer and
organisations should ensure Vols sign an assignment of
their IP rights
Other Issues
16. Harassment
An employer could be liable for harassment by volunteers
as its agent
Health and Safety
Employers must ensure as far as reasonably practicable
that non-employees are not exposed to risks to their H & S
Volunteering England recommends organisations include
Vols in their H&S policy (and take out appropriate
insurance)
Other Issues (cont)
