VOLUNTEERS AND INTERNS PRACTICAL GUIDANCE FOR CHARITIES

Transcription

1 VOLUNTEERS AND INTERNS PRACTICAL GUIDANCE FOR CHARITIES Ed Hunter, Emma Osborne, Sophie Hay, David Ashmore, Jo Powis & Thomas Ince (Reed Smith) Type: Published: Last Updated: Keywords: Legal Guide Volunteers, Interns, Charities 1

2 This document provides general information and comments on the subject matter covered and is not a comprehensive treatment of the subject. It is not intended to provide legal advice. With respect to the subject matter, viewers should not rely on this information, but seek specific legal advice before taking any legal action Any opinions expressed in this document are those of the author and do not necessarily reflect the position and/or opinions of A4ID Advocates for International Development

3 1. Introduction This guide offers general information and guidance to UK charities on the most common HR and employment law issues arising from the use of volunteers and interns and describes the practical steps charities can take in order to avoid the perils and pitfalls associated with internships and volunteer programmes. Guidance is provided on the national minimum wage ( NMW ), recruitment procedures, discrimination, insurance and health and safety. 2. Legal Status of Volunteers and Interns Understanding the legal status of a volunteer or intern is important because employment law rights apply to different people in different ways. If an intern is deemed to be an employee or worker, they will not only be entitled to NMW, but also to holiday pay, protection from discrimination, limits on working time, and other rights. In most cases, an intern or a volunteer is not an employee or a worker. However, the legal status of volunteers and interns is not always clear cut. Various factors will determine whether an individual is classed as an employee, a worker, a volunteer or self employed, and charities should consider the following when making this assessment. The existence and terms of a contract or other agreement (express or implied) governing the relationship between the charity and the individual. The obligations placed on the individual, whether under that agreement or otherwise. The degree of control the individual has over their working hours, tasks, etc. The extent to which the individual is integrated within the organisation. Whether the individual provides a personal service in their work. A detailed analysis of the legal tests for the classification of volunteers/interns is outside the scope of this Guide. However, it is open to charities to take some or all of the following steps in order to minimise the risk of interns and volunteers being classed as employees or workers: Only pay expenses (other than accommodation expenses see also the National Minimum Wage guidance below) which are reasonably incurred in the performance of the volunteer s/intern s duties. Collect receipts when reimbursing expenses and limit expenses to out of pocket payments. Give volunteers and interns the flexibility to refuse tasks and to choose when to work. 3

4 Record the volunteer/intern arrangement in writing at the outset (see Documenting the arrangement below). When describing the arrangement, use flexible, non contractual terminology such as usual, agreement, role and suggested avoid contractual terms such as contract, job, and payment. If appropriate, create separate policies for volunteers and interns governing their recruitment, supervision and other aspects of the individual s relationship with the charity that are unique to volunteers and interns. 3. National Minimum Wage ( NMW ) 3.1 Volunteers and interns Volunteers and interns are only entitled to be paid the NMW if they are classed as workers under the NMW legislation. Individuals will not fall within the definition of worker if they have no form of contract with the employer and receive no financial remuneration or benefits in kind for providing their services. For further details of the factors which determine an individual s status as a worker, see the Government s guidance on this issue: the National Minimum Wage: Worker Checklist alasset/dg_ pdf 3.2 Voluntary workers Individuals working voluntarily for charities (including interns), voluntary organisations, associated fundraising bodies and statutory bodies are exempt from the NMW provided that the only money they receive is in respect of expenses (other than accommodation expenses) which are reasonably incurred in the performance of their duties. Workers who fall within this category are classed as voluntary workers. It is important to strictly comply with this exception, otherwise a charity may be required to pay the NMW to its volunteers (including up to six years of back pay) and, where the charity refuses or wilfully neglects to pay the NMW, it could face criminal sanctions. 4

5 3.3 Expenses As a general principle, expenses which can be reimbursed whilst remaining within the NMW exemption for voluntary workers, are those costs which a volunteer/intern has to incur which would not have been incurred had they not been volunteering or interning. Therefore, expenses can include: Travel to and from the place of volunteering/interning; Travel whilst volunteering/interning: Meals taken while volunteering/interning: Postage, phone calls, stationery etc.; and Costs of protective clothing/special equipment It is not possible to reimburse accommodation expenses to voluntary workers within the NMW exemption. As stated above, expenses should be reimbursed on production of valid receipts rather than a flat fee (such as 5 a day for lunch). Paying any form of flat rate fee for expenses will run the risk that the volunteers and interns will be deemed to be entitled to the NMW, which would expose the charity to financial as well as potentially criminal liabilities. For further information on NMW exemption see the Government s guidance Who need not get the national minimum wage Training Training will not be considered a benefit in kind for NMW purposes provided that it is: Necessary for the volunteer or intern to perform their duties For the sole or main purpose of improving the volunteer s or intern s ability to do the work, and Necessarily acquired in the course of the volunteering/interning 5

6 3.5 Gifts The provision of gifts of small value, and with no obligation, is unlikely to change a volunteer s or intern s status to that of a worker entitled to the NMW. However, charities should be careful to ensure that this does not create a contractual relationship in which work is undertaken in return for gifts. A limit on the value of gifts which can be accepted by interns and volunteers could be specified in the intern/volunteer agreement (see Documenting the arrangement below). 3.6 Work experience Students undertaking work experience placements of less than one year as part of a higher or further education course, and those of compulsory school age, do not qualify for the NMW. This work experience exception is very narrow and in most cases it does not apply to interns. However, where the intern works for a charity, they may, depending on the circumstances, be a volunteer (and therefore not entitled to the NMW). 4. Vetting and Recruiting Although volunteers and interns may not be covered by discrimination legislation (see Discrimination issues below), it is best practice for organisations to adopt the same fair recruitment practices as for the recruitment of employees. Open advertisement of internships rather than reliance on connections also widens the possible pool of talent. Document the recruitment process so that there is a paper trail in the event of any complaint or litigation. Ensure that all staff involved in the selection process have received training on the charity s equality policy and its application to recruitment, including interviewing techniques to help them recognise when they are making stereotyped assumptions. Consider the use of a job description. Ensure that the job description is written in plain language, uses an appropriate job title and considers the possibility of part time and job share arrangements. Provide and accept information in accessible formats, such as e mail, Braile, Easy Read, large print, audio format and other data formats, where this would be a reasonable adjustment. Whenever possible, more than one person should be involved in shortlisting candidates to reduce the chance that one individual s bias prejudicing an applicant s chances of being selected. 6

7 Ask candidates whether they need any reasonable adjustments in advance of the interview, for example, in a letter inviting them to an interview. 5. Documenting and Arrangement A practical tip to help ensure volunteers are not caught under worker protection legislation is to document the arrangements with the individual concerned. This could be by way of a volunteer agreement which details: The volunteer s role Induction and training Supervision Expenses Insurance Health and safety The length and form of the agreement will vary depending on the nature of the role. As mentioned above, it is sensible to avoid using contractual terms such as contract and payment. In addition to putting in place a volunteer/intern agreement it may also be worth putting in place a volunteer/intern policy. The policy should provide a framework for the volunteer programme or internship and should lay down its overall principles. Some policies forming part of an overarching handbook (e.g. health and safety) may encompass both paid staff and volunteers/interns. 6. Health and Safety Issues Set out below is a brief overview of the various health and safety duties which charities may owe their volunteers and interns. 7

8 6.1 Duty of care Organisations owe a general duty to their volunteers and interns to take reasonable care to avoid causing them harm. In practice reasonable steps should be taken to ensure that the likelihood and potential seriousness of injury to volunteers/interns is reduced. Depending on the circumstances, this might include giving volunteers and interns adequate information, training, the use of safety clothing or equipment and supervision. 6.2 Health and Safety at Work etc Act 1974 There is also a legislative duty on organisations to take steps to protect their volunteers from harm. This arises from the Health and Safety at Work etc Act 1974 which imposes a duty on every employer which includes the common law duty, and additionally demands information on health and safety to be provided to volunteers. 6.3 Risk Assessments There is a duty on employers to carry out risk assessments by looking at potential risks to their employees and others, including volunteers and interns. If an organisation has five or more employees, these assessments must be in writing. Volunteer only organisations do not have a statutory duty to carry out assessments. However, the absence of risk assessments may suggest a failure to meet the required common law and statutory duty of care for volunteers, therefore such organisations may opt to carry out the assessments. Risk assessments involve identifying hazards and risk. When working with volunteers it is sensible to have an overall risk assessment for volunteer programmes and smaller risk assessments for individual roles. 6.4 Health and Safety Policy Organisations with five or more employees must have a written health and safety policy. Organisations with fewer than five paid members of staff should strongly consider writing a health and safety policy and circulating it to staff and volunteers. Ensure that any interns or volunteers read and understand your organisation s health and safety policy prior to starting their volunteering/internship. As well as being a basis for good practice, an effective policy also helps demonstrate that the duty of care is taken seriously. Volunteers and interns should be included in the policy, have access to it, and be briefed on the policy during their inductions. 7. Discrimination Issues Generally individuals in employment are protected from discrimination, victimisation and harassment and the definition of employment covers workers as well as employees. The characteristics protected by discrimination law are: age; disability; gender reassignment; marriage and civil partnership; 8

9 pregnancy and maternity; race; religion or belief; sex; and sexual orientation. Volunteers and interns are not specifically covered by the laws surrounding discrimination, but it is best practice for organisations to apply the same equal opportunities policies to everyone who works for them. 8. Insurance All organisations with volunteers and interns should ensure they have an insurance policy covering these individuals. There are several different types of policy to consider: Employer s liability insurance whilst there is no duty to insure volunteers or interns it is good practice to do so. Organisations should ensure that volunteers and interns are explicitly covered by their employer s liability insurance, or, at the very least, under similar terms in their public liability policy. Public liability insurance this should explicitly mention volunteers and interns, where they are used by the organisation. Public liability insurance covers anybody other than employees who come into contact with the organisation. Professional indemnity insurance Depending on the nature of the volunteer programme or internship, this should cover volunteers and interns. Professional indemnity covers claims arising out of incorrect care or inaccurate advice. If, for example, volunteers/interns are providing free advice, they should be covered under the policy. Personal accident insurance Personal accident insurance covers injuries, accidents or deaths that occur where the organisation has not been negligent. Some organisations may wish to provide this cover for volunteers and interns. It is worth noting that there will most probably be an upper age limit on the cover (this does not, however, mean volunteers cannot be taken on over a certain age). Insurance for volunteer drivers If an organisation owns the vehicle being used then it is responsible for arranging insurance. Travel Insurance for overseas volunteers/interns It is essential that overseas volunteers and interns have adequate travel insurance for the duration of their stay. When seeking insurance cover for volunteers and interns, the services of a broker experienced within the sector may be useful. Organisations should provide all relevant information when seeking insurance, for example: the numbers of volunteers and/or interns working with the organisation; the activities they carry out; and the location of the volunteers. 9

10 Disclaimer: The views expressed in this Guide are those of the author and do not reflect the views of A4ID nor of any A4ID member law firms or other contributors, in any way whatsoever. The Guide is for general information purposes only and does not claim to be a comprehensive description of the law. The Guide does not provide legal or other advice and is no substitute for obtaining specific legal advice and assistance. A4ID may be able to source lawyers with relevant qualifications and experience in international investment arbitrations to provide pro bono legal advice and assistance if required. Should you require such assistance, please contact info@a4id.org. A4ID is not responsible for the content of further resources or external internet sites that are mentioned in this Guide. 10