Being careful in your relationship with volunteers
Volunteers are an extremely valuable resource, which are heavily relied upon by many charities. Volunteers can be flexible and motivated so it’s important to look after them. Volunteers should be made to feel appreciated and as part of the organisation. Care should however be taken when managing volunteers so as to not inadvertently create an employment relationship. It is important that both parties are aware of the volunteer’s employment status at the outset.
There have been a number of cases where voluntary workers have brought claims, arguing that they have a right to be considered as employees when claiming both discrimination and unfair dismissal. So, whilst charities will want to avoid creating a formal contract with their volunteers, it is good practice to set out in writing the intentions of the parties, such as a description of the volunteer’s role, clarifying the intentions and expectations of both parties so as to minimise the chance of any misunderstandings. The language should be carefully constructed to ensure the agreement is flexible and not a binding contract of employment.
Although ideally charities will want certainty about the time a volunteer can commit to providing their services, imposing a fixed work pattern will risk being seen as a contractual obligation. It is therefore better to set out a preferred schedule, while making it clear that the organisation is flexible about time commitment.
Case law has confirmed that a usual minimum time commitment will not create an obligation on volunteers to work at least those hours where it simply outlines an expectation. It is therefore advisable to describe such matters as "hopes, intentions, policies" rather than "rights and obligations". It is advisable to include an express statement, making it clear that neither party intends any employment relationship to be created.
Beyond the written document
The written document is only the starting point; the tribunals will look beyond this, particularly at how the relationship works in practice. The relationship can and often does evolve over time so it is therefore important that the relationship with each volunteer is regularly reviewed to ensure that it does not become a contractually binding employment relationship.
A key factor in being a volunteer and not an employee or worker is the lack of remuneration. Whilst it is logical to think about remuneration in monetary terms, the interpretation does go further and would include for example, an offer of training unrelated to their work in return for, say, two months’ work or other perks such as even providing a "free" lunch.
Volunteers should be reimbursed for any out of pocket expenses incurred as part of their role subject to the provision of a receipt or suitable evidence in order to identify how much has been paid and why. Any payments over and above actual expenses may be regarded as consideration for services provided or income, and suggest that the volunteer is in fact a worker or employee, so particular care should be taken to avoid this.
A balance should be struck between making volunteers feel part of the charity and differentiating between them and other paid staff. Volunteers should be given more free rein to decide how to spend their time than employees. You cannot "require" your volunteers to carry out duties and care should be taken when dealing with volunteers who fail to fulfil expectations. Should a charity require volunteers to carry out certain duties within set timescales, a tribunal may consider that there is in fact an employment relationship.
Not same control as for employees
Charities will need to allow volunteers to decide when or if they will be working, and not have the same degree of control as they would have over employees. It is however important that volunteers are subject to some policies such as data protection, health and safety, and criminal records checks, where necessary.
VOLUNTEERS ARE NOT PROTECTED BY ANTI-DISCRIMINATION LAWS. Judgment in the case of X v Mid Sussex CAB was handed down by the Supreme Court on 12 December 2012, in which it was held that volunteers do not qualify for protection from discrimination under the employment provisions of European or domestic anti-discrimination law.
X was a volunteer legal adviser with the Citizens Advice Bureau, and she alleged that she was discriminated against because of her disability (X being HIV positive). X said that this discrimination was against European law and argued that her voluntary work at the CAB constituted an “occupation” and so she was covered by the legislation which protects workers and people in, or trying to access, an occupation.
The CAB disputed her allegations of discrimination, but also argued that in any case X was not protected by EU anti-discrimination law or domestic law, because she was a volunteer with no binding contact with the CAB. The CAB successfully applied to strike out her claim, and successfully defended its position before the Employment Appeal Tribunal and the Court of Appeal.
The Supreme Court agreed that neither domestic legislation nor European discrimination law applies to persons in X’s situation. If the decision had gone the other way and allowed volunteers to be covered by anti-discrimination laws, it would have brought new rights to many millions of volunteers in the EU.
Many charities and volunteering organisations supported the decision made by the Supreme Court. It reasoned that volunteers do not need discrimination protection because they are not reliant on earning a wage. Volunteering England said that having the same protection as employees would "undermine the nature of volunteering, create practical barriers and additional costs" and create a "formalisation" that would be "unwanted by most volunteers".
Vocational training is difficult
On the other hand the Supreme Court was aware that there are also workers who are unpaid but who undertake work in a vocational training context. The ruling makes clear that in the vocational training context, discrimination law will apply to interns involved in vocational training. However, it did not give any guidance as to what sort of internships will be covered.
Further it did not address what protection will be afforded volunteers outside the employment provisions. During the passage of the Equality Act 2010 through Parliament, the Solicitor General stated: “Volunteers are currently protected from discrimination, victimisation and harassment in respect of the provision of goods, facilities and services to the public.
As recipients of services, for instance, from an agency that arranges placements, there would be protection, which has been extended to cover age. Such discrimination might be highly relevant. Changing the laws proposed would provide a remedy in an employment tribunal instead of a county court, but there is a remedy already…”
The logic being that volunteers are members of the public and if the organisation they are working for is a service provider, the claim can be brought in the county court by any type of volunteer. It is not necessary for the volunteer to demonstrate that they undertook duties which were substitute employment or akin to those of an employee (which was the case advanced by the Appellant in X).
Moral obligation over discrimination
Therefore whilst the ruling of the Supreme Court gives clarity as to the status of most volunteer workers, it is worth considering the moral obligation to prevent discrimination suffered by volunteers. With the increased use of volunteers, there is likely to be increased pressure for the Government to cover them under the anti-discrimination legislation. It is therefore worth considering putting in place an equal opportunities policy that covers volunteers, but to not make them subject to the charity’s disciplinary and grievance procedures.
