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!

1. JANE KLAUBER
Russell-Cooke LLP
VOLUNTEERS OF TODAY

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)

17. Contact Details
Jane Klauber
Partner
020 8394 6483
Jane.klauber@russell-cooke.co.uk