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Volunteers And The Law


Managers must plan ahead to avoid legal pitfalls linked to volunteering.

by Elizabeth Davis

The first legal priority for charities using volunteers is to make sure they do not unintentionally transform them into employees, with the same rights in areas such as pay, working hours and discrimination - and the right to go to an employment tribunal.

All employment tribunal cases so far involving volunteers have centred on claims of discrimination on grounds of gender, race or disability. Each time, the tribunal had to decide whether there was a contract of employment and in some cases the evidence on which they made their decision has been very slender.

A volunteer becomes an employee when there is a contract of employment, and it does not have to be written down - it can be created by implication or verbally. The basic requirements of a legal contract are an offer, acceptance of that offer, an intention to create legal relations and some form of payment.

In deciding whether a contract exists, the tribunal will look at:

•  the relationship between the parties

•  any written documentation

•  the obligations and commitments of both sides

•  any payment the person receives and what it is for.

Charities should ensure any payment made is for the volunteer's actual expenses, otherwise it might be seen as a consideration for a cont­ ract of employment.

In fact, there are other dangers in paying anything more than actual expenses. The payments might amount to a taxable benefit, or affect state benefits the volunteer is claiming. There are strict rules about how many hours of unpaid work can be undertaken before benefits are reduced.

Volunteers working for charities or other voluntary organisations who only receive genuine expenses or benefits in kind are ex­pressly excluded from the National Minimum Wages Act 1998. If they receive more than this, they could be treated as low paid emp­ loyees under the Act and therefore entitled to a minimum hourly wage. The same definitions apply to the Working Time Regulations.

However, even when a person does not receive any remuneration, the employment tribunal has held that a contract of employ­ ment can be created when it is clear that both parties have obligations.

A written agreement is a useful way of recording the intended relationship between the organisation and its volunteers, but it needs to be worded in non-contractual language and avoid imposing legal obligations (other than those that automatically arise, for example under Health and Safety legislation). It should set out the expectations and commitments of both parties, but be written in terms of hope and expectation rather than obligation. Words such as 'engagement' or 'employment' of volunteers should be strictly avoided.

To confuse the issue further, when it comes to criminal records checks, an organisation with volunteers is classified as an employer. There are no definitive lists of which positions require such checks but charities need to consider this issue carefully.

Words such as 'engagement' or

'employment' of volunteers should

be strictly avoided.

The Health and Safety at Work Act 1974 imposes a duty on employers to ensure that 'persons not in their employment, who may be affected by their undertaking, are not exposed to risks to their health and safety'. An organisation is therefore liable for the health and safety of its volunteers even though the volunteers have no correspond­ ing responsibilities towards the organisa­ tion.

An organisation can be liable for negli­ gence if a volunteer is injured. For this to arise there must be a sufficient relationship of 'proximity or neighbourhood' between the parties and the injury must be reason­ably foreseeable. An example of this could be a hospice using a volunteer to move patients without showing them how to lift safely. If the volunteer injures his or her back, the hospice could be liable for breach of duty of care if it was reasonably foresee­ able that, without proper training, the injury might occur.

All charities should check with their insur­ance providers that volunteers are covered for accident or injury and third party claims arising from the actions of a volunteer.

Data Protection is another important area to consider. Many organisations hold per­sonal data, that is data that can identify the volunteer- their name and address, marital status, age and bank details. They may also hold data classified as sensitive personal data, for example information relating to physical health, racial or ethnic origin, religion or religious belief or offences revealed by the Criminal Records Bureau.

Anybody holding personal data has to comply with the provisions of the Data Protection Act. Volunteers, as well as emp­ loyees, have a right to request access to and be given copies of any information that an organisation holds about them and must give consent to the organisation holding their personal data. Specific consent, i.e. written consent, is required to hold sensitive personal data.

Further information

Elizabeth Davis is partner and head of the charities team at law firm Blake Lapthorn Linnell. Tel: 02392 221122 or email: elizabeth.davis@bllaw.co.uk

National Occupational Standards for the management of volunteers is available from the Voluntary Sector National Training Organisation (VSNTO). Free to download at: www.voluntarysectorskiils.org.uk or order from helpdesk@askncvo.org.uk; tel: 0800 2 798 798; textphone 0800 01 88 111, price £ 10

For guidance on criminal records checks, both the Department of Health, tel: 020 7210 4850 and the Care Standards Commission, tel: 0191 233 3556 offer helplines as does the CRB, tei: 0870 90 90 811. See also the CRB website at www.crb.gov.uk

[Shirley Fleetwood]

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