12 May 2008
The 1-7th June is National Volunteers Week so if your organisation enlists the help of volunteers this is the time to recognise their contribution.
It is estimated that 22 million individuals work as volunteers in the UK. Volunteers have very few rights as the arrangement is not automatically recognised for most workplace legislation. However, they could assert that they are workers or even employees. Organisations with volunteer involvement should find that introducing a formal Volunteers Policy, which clearly defines the relationship and communicates the expectations of both parties, will help to avoid any unnecessary complications and cost.
A volunteer may be found to be a worker if a tribunal decides that there is a contract between the parties, express or implied. To create a contract there must normally be some form of “consideration” and “intent.” Consideration does not have to be in the form of wages and could be a benefit in kind in exchange for the work carried out. Intent will be present if the parties intended the arrangements to form legally binding obligations. If “mutuality of obligation” is also found to exist, the contract may be deemed an employment contract, as was found to be the case in Armitage v Relate (1994). Mrs Armitage had entered into an agreement with Relate to volunteer for a specified minimum of hours in return for training as a counsellor. A provision was included that, should she leave before completing the obligation to work for a number of hours, she would be required to repay the cost of the course. The tribunal held this arrangement was sufficient to amount to a contract of employment enabling her to bring a claim for race discrimination.
A clearly written Volunteers Policy can help an organisation contest a claim for worker or employment status by expressly defining the nature of relationship. It can set out how the organisation will meet its obligations towards the volunteer and what is expected in return. What is covered in the policy will ultimately depend on the nature of the organisation but, as a general rule, the approach to the following areas should be considered.
1) Purpose and scope
The purpose behind the organisation’s involvement of volunteers should be explained, together with a description of the range of volunteer tasks that may be available. This can include a specification of the normal time commitment. However, this should be written as an expectation of what is involved and not as an obligation to work a minimum number of hours. It can also be helpful to confirm how the organisation recruits its volunteers; to include an equal opportunities statement and confirmation of any checks that will be required to be undertaken. Ideally, volunteers should not be engaged to do the same job as paid workers and there should be clear boundaries between the responsibilities of employees and volunteers. In addition to the Volunteers Policy, it is useful to detail the specific activities to be undertaken by developing volunteer role, rather than job descriptions.
2) Health and safety
The organisation’s legal duty to ensure, as far as reasonably practicable, the health and safety of employees and others affected by its activities extends to volunteers. So, in this regard, volunteers should be treated in the same respect as for paid employees. This means that risk assessments of volunteer activities should be carried out to establish what information, supervision or training is required. The policy should include a statement, or refer to a general Health and Safety policy, which sets out the volunteer’s responsibilities and what steps the organisation will take to ensure health and safety. As a minimum, this is likely to include a normal induction on fire and emergency vacation procedures.
In addition to personal injury claims from volunteers, the organisation may be held liable for the acts or omissions of the volunteer if these result in an injury to a third party. Ensuring that volunteers are adequately covered under the employers’ liability or public liability insurance is therefore an important consideration.
3) Expenses
It should be confirmed that volunteers will be entitled to be reimbursed for reasonable out of pocket expenses and what this is expected to cover, specifying any limits or exclusions. The procedure for claiming expenses should be set out and these should be supported by receipts, wherever possible. Paying a flat rate to cover any expenses can have implications for the volunteer if they are on benefits. It may be treated as “consideration” by way of wages, giving rise to an entitlement to the National Minimum Wage. Organisations may wish to confirm that they have discretion to make honorarium payments, but this will need to be exercised with care. A genuine one off payment is not a problem. However, if these become regular or expected they could have tax and legal implications.
4) Confidentiality
A volunteer’s personal details are covered by the Data Protection Act so the policy should confirm what personal information is kept, how this is used and to whom it will be disclosed. Equally, if during their activities the volunteer will be entrusted with information which is confidential, there should be a statement governing the use or disclosure of that information by the volunteer, both during and after their engagement.
5) Complaints
It is inappropriate to use normal discipline and grievance procedures. Instead, it is important to establish some other mechanism under which any concerns or complaints by either party can be addressed. The policy should set out an internal complaints procedure which, if resolved successfully, will reduce the risk of a volunteer seeking an external remedy by way of a tribunal claim. The nature of the complaints that the organisation may have against the volunteer should be specified. The volunteer will after all be representing the organisation and therefore certain standards of conduct should be expected. Although, the organisation is unlikely to be found vicariously liable for the discriminatory acts of volunteers, it is clearly good practice to expect them to behave in accordance with the organisation’s equal opportunities or diversity policy.
Employers can make use of National Volunteers Week to promote the charity work of others and encourage their employees to volunteer.