The success of volunteer workers during the Olympics has thrown the potential of this sector of the workforce into sharp focus. David Cameron’s vision of the “Big Society” calls for mass engagement in public life and, certainly, following the success of the games, there has been a surge in interest in volunteering, both from those wishing to offer their services and those seeking volunteers. Whilst this surge of goodwill is to be welcomed in many respects, there are legal implications arising from the engagement of volunteers which should be considered.
Status of Volunteers
Establishing the legal status of volunteers is important in ascertaining whether an individual accrues any rights or protection under employment legislation. Unfortunately, there is a vast range of relationships, ranging from the purely voluntary to those which are contractual, making any general guidance difficult to provide. The payment of expenses to a volunteer, for example, could be interpreted as being payment for services, particularly if there are no real expenses incurred by the volunteer. In this event, the volunteer may be considered to be an employee, given rise to all of the employment protections which accompany that status, such as the right not to be unfairly dismissed. Similarly, if a volunteer enters into an agreement agreeing to volunteer at specific times and for a minimum period, especially if combined with some form of training and reimbursement of expenses, there is a risk that employment status will be created.
Minimising the risk of creating a contract of employment
To minimise the risk of a volunteer arrangement becoming an employment contract, organisations can take some practical steps, including:
- avoiding the payment of anything which could be considered to be wages. Payments for expenses should be clearly identified as such and should relate to true expenses and, ideally, be reimbursed against receipts;
- giving the volunteer the ability to refuse task and chose when to work
- avoid using language in any volunteer agreement which sounds contractual.
The National Minimum Wage issue
The National Minimum Wage must be paid to all “workers”. Failure to pay this has serious repercussions for an organisation, including paying up to six years back dated minimum wage and a criminal prosecution. Volunteers are only entitled to NMW if they fall within the definition of “workers”. If a volunteer has no form of contract of employment or contract to perform work or provide services and receives no financial reward or benefit in kind for providing his services, it is unlikely that he will be deemed a worker. If, however, estimated expenses (as opposed to receipted expenses) are paid or regular rewards and gifts are given in return for services, there is a risk that the line will be crossed, giving rise to employment status and the consequent entitlement to NMW.
Volunteering has many benefits, both for the volunteer, in the form of building confidence, skills and experience, and for the organisations engaging them, aiding recruitment and enabling them to give something back to the community. It is not, however, without its own “red tape” which needs to be carefully considered.
John Andrews, Partner, SRB LLP