Volunteers can be an invaluable resource to many charitable organisations. In this briefing, we review the key legal considerations for organisations that currently engage volunteers or are contemplating doing so.
What is a volunteer?
There is no statutory definition of a ‘volunteer’ for general employment law purposes. However, it is generally accepted that the key features of a volunteering arrangement are that the individual gives up their time to do something, unpaid, for the benefit of others.
What is a volunteer’s legal status?
In the UK, there are four general categories which can apply to those providing services: employee, worker, genuinely self-employed contractor and volunteer.
An individual’s legal status for employment purposes is important as it determines what legal rights and protections they have. For example: only employees are entitled to protection against unfair dismissal and have the right to receive a statutory redundancy payment; workers (and employees) are entitled to receive the national minimum wage and paid holidays. Genuinely self-employed contractors only have the rights they have negotiated in contract with the party engaging their services. However, please be aware that ‘contractors’ can also be ‘workers’ if required to perform services personally.
Whilst a number of factors influence employment status, the usual starting point for determining an individual’s employment status is their contract. A true volunteer will not be engaged under a legally binding contract, and therefore will not be an employee or a worker. It is not uncommon for volunteers to be provided with a volunteer agreement, setting out the parties’ expectations and practical arrangements. However, this should be carefully worded to avoid creating any legal obligations (see Volunteer Agreement below). Generally, true volunteers will have no employment rights.
Do I need to pay National Minimum Wage?
The National Minimum Wage (NMW) is payable to employees and workers only. Organisations do not need to pay NMW to:
▪ Genuine volunteers.
▪ ‘Voluntary workers’ (as defined in the NMW Act 1998).
A ‘voluntary worker’ is someone who works for a charity, voluntary organisation or an associated fund-raising or statutory body and who does not receive payment (other than reimbursement of expenses incurred) or any other benefit in kind other than reasonable subsistence or accommodation.
Organisations who reimburse volunteer expenses should be careful only to reimburse actual expenses incurred (preferably on production of receipts) in order to preserve volunteer status. As mentioned above, volunteer status is dependent on the work being unpaid. Therefore, if expenses payments are made to volunteers regardless of whether they have incurred any expense or not, this additional payment element could result in the volunteer being deemed to be a worker and eligible to receive NMW for all work carried out (as well as other employment benefits). Organisations should also be mindful of any benefits offered to volunteers. It has been held that providing training to a volunteer which goes beyond what is necessary for the performance of their role could amount to a benefit in kind which may impact employment status.
Voluntary organisations/charities sometimes choose to thank volunteers by gifting vouchers or a bottle of wine at the end of their stint of volunteering. If such items are modest – effectively just a token – then no issue should arise. However, if vouchers or other gifts are regularly given or if the value is significant, this could compromise the volunteering relationship. Where a volunteer is in receipt of a benefit beyond what would be considered appropriate for a genuine volunteer this could leave the organisation open to a complaint of failure to pay the NMW. The implications of failing to pay the NMW where it is due can be severe. Organisations can be required to pay years of back pay, plus penalties.
Health and Safety Obligations
Organisations owe a wide duty of care to protect the health and safety of their employees and other people who come into contact with their organisation – including contractors, volunteers and members of the public. It would be best practice to ensure that all volunteers are made aware of the organisation’s health and safety policy and any procedures they should follow.
There is no requirement to provide a volunteer with a written agreement. However, in most cases, organisations taking on volunteers, while wishing to avoid creating a legally binding contract do like to formalise the volunteering arrangement in some way. When drafting a volunteer agreement, organisations should take care to:
- Use the agreement to set out the expectations of the parties, not the obligations.
- Make the arrangement as flexible as possible.
- Be clear about any policy on reimbursement of genuine out-of-pocket expenses.
- Include an expectation that the confidentiality of the organisation and its users will be respected (although potentially not legally binding, this would be a helpful reminder/deterrent).
- Refer to any other documents the volunteer should be mindful of (e.g. H&S policy; volunteer policy, if there is one).
Volunteers can provide invaluable support to charitable organisations, and organisations should not be deterred from engaging genuine volunteers for fear of creating unintended legal obligations. Steps can be taken to reduce this risk and ensure both parties clearly understand the nature of the relationship.