This edition’s FAQs look at the rights of volunteers and how to protect their status to avoid difficulties for your staff and your organisation.
Q1: Who is a volunteer?
A volunteer is someone who is engaged in an activity which involves spending time doing something which aims to benefit some third party without pay.
Interns can be a type of volunteer but their status will depend on the role they undertake and the expectations of the parties. Internships are typically periods of short-term work undertaken, generally, by young people after they finish study and before they begin permanent, full-time employment.
Work experience students are not volunteers.
Q2: What rights do volunteers have?
Genuine volunteers have very limited legal rights. Unless a volunteer is considered to be a worker or an employee, their rights are limited to:
The right to work in a safe environment
The right for their data to be processed in accordance with laws regulating data protection
Q3: Are volunteers entitled to be paid?
No. Volunteers should not receive any pay for the work they undertake. If you pay a volunteer, s/he is likely to be considered to be a worker and will be entitled to receive all rights available to workers. This includes the right to receive the national minimum wage, holiday pay, the right not to suffer any unlawful deduction from wages and the right to auto-enrol in a pension.
The only payments you can make to a volunteer are those which reimburse the volunteer for their out-of-pocket expenditure. This will include expenses of travelling to the place where they are volunteering, and can also cover the costs of care for dependants (such as nursery fees) where these are paid to enable the volunteer to undertake their voluntary work.
Q4: What about benefits in kind?
You should not provide a volunteer with benefits in kind such as the right to obtain subsidised travel, reduced membership fees or staff discounts as these are likely to be considered to be payment for services. In these situations, HMRC is likely to treat the volunteer as an employee and this will have serious consequences for the business. Unless the volunteer is exempted from the requirement to receive the NMW (see below), you will be deemed to have underpaid the ‘volunteer’ the NMW and will have to pay arrears to the volunteer and may also have to pay penalties of up to 200% of the arrears, subject to a maximum of £20,000 per underpaid worker.
Workers who are working on a voluntary basis for a charity, a voluntary organisation, an associated fundraising body (e.g. a charity shop) or a statutory body (e.g. a school or hospital) do not qualify for the NMW if they do not receive:
Any payment other than a payment in respect of expenses actually incurred in their voluntary work, or expenses reasonably estimated as likely to be incurred or to have been incurred.
Any benefits in kind other than the provision of reasonable subsistence or accommodation (this would cover, for example, food and accommodation provided for those voluntary workers helping at youth hostels).
Payments to cover subsistence, except where the voluntary worker has been placed with the host employer by a charity, and the host is itself a charity, voluntary organisation, associated fundraising body or statutory body. (This would cover e.g. voluntary workers placed by a central volunteering organisation with schools, hospitals and voluntary organisations, often away from home.)
Q5: Can we provide training to our volunteers?
Yes, but only if it is necessary to help the volunteer perform their duties or improve their role specific skills.
If you enrol your volunteers in training that goes beyond the needs of their volunteering opportunity, this will constitute a significant benefit in kind that may change the nature of your relationship. In other words, if you offer additional training your volunteer may be considered to be a worker or even an employee.
Q6: Is it okay for our volunteers to wear uniforms?
If your staff wear uniforms, it is perfectly acceptable to ask your volunteers to do the same provided it is necessary for them to perform their role. For example, if your shop floor staff wear tabards and your volunteer is working alongside them, it is sensible to ask them to wear a tabard so that they can easily be identified.
Q7: Do we need a written agreement in place with our volunteers?
No, but many organisations do prefer to set out in an agreement the reasonable expectations of both parties to ensure that these are understood.
If you do wish to have a written agreement in place, please note the following:
Do not adapt a section 1 statement or contract of employment. The agreement must not include clauses that are necessary for an employment relationship.
Keep the agreement short and informal in style. It should include a statement that you do not intend to create a legal relationship between you and the volunteer.
Avoid using language that makes the arrangement sound contractual; adopt flexible language, such as “usual” and “suggested” and express any commitments as expectations rather than obligations. For example: “We hope that you will usually be able to volunteer with us for at least [SPECIFY ANY PREFERRED TIME COMMITMENT] so that we can each get the most from the volunteering experience. However, we are flexible about when you work [within the constraints of drawing up a rota] so please let us know if you would prefer a different arrangement.”
If you wish to refer to the role the volunteer is going to undertake, do not include a job description or refer to it as a job.
You can ask the volunteer to give you as much notice as possible if they wish to stop volunteering but avoid setting a specific timeframe and make it clear that they don’t have to give you any notice to terminate the arrangement.
Q8: How should we deal with complaints or grievances raised by volunteers?
You should treat your volunteers fairly and consistently. It is good practice to meet with the volunteer and, if necessary, investigate their complaint and explain the outcome to him/her. There is no requirement to allow the volunteer to appeal but you may wish to allow this.
The ACAS Code of Practice on discipline and grievances does not apply to volunteers.
Q9: Are volunteers protected from discrimination?
No. Unless your volunteer becomes a worker or an employee, they will not be able to bring a claim against you for discrimination. That said, you should treat them fairly in order that they feel valued and respected.
However, if a volunteer discriminates against a member of staff or service user, you will usually be held to be responsible and will liable for any claims that arise. This is true, even if you are not aware of the conduct and you did not approve of it.
Q10: Do we need to have insurance in place for volunteers?
Yes, you should make sure that your insurers are aware that you have volunteers working for you so that you are covered both for any claims that may be brought if a volunteer should become injured and for any claims that could be brought against you because of the actions of a volunteer (for instance, if a volunteer adviser gave negligent advice).
Q11: How do we ensure that our volunteers do not obtain employment or worker status?
You should keep appropriate boundaries between your paid staff and volunteers. In particular:
Do not give your volunteers any payments or benefits in kind that can be seen as payments for work.
Although you can pay the volunteer’s expenses, avoid paying a fixed amount each week (unless genuinely it reflects out of pocket expenditure) to avoid this payment looking as though it is a substitute for a ‘wage’. Ask your volunteer to complete a claim form listing their expenses. It is acceptable to pay for car travel on receipt of a mileage claim (and to pay a set amount per mile in accordance with HMRC allowances) without a petrol receipt.
Expenses must be reasonable so it is advisable to set sensible limits on the amounts that can be spent on meals, accommodation, etc.
Training offered should be linked to the role that the person is carrying out, rather than a general perk or enticement to volunteer.
Continue to treat the volunteer as a volunteer and do not place any burdens or expectations on them. If the volunteer becomes an integral part of your organisation, you should consider employing them!
Published: 3 July 2017
Employment Law Update - July 2017
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