LIABILITY FOR VOLUNTEERS: HEALTH AND

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1 LIABILITY FOR VOLUNTEERS: HEALTH AND SAFETY LAW Sophie Hay Reed Smith Type: Published: Last Updated: Keywords: Legal guide July 2011 July 2011 Liability; volunteers; health and safety; duty of care.

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 2012

3 Introduction Organisations have a duty of care towards their volunteers and some volunteers may be employees in the eyes of the law and as a result be entitled to the full protection of the health and safety legislation. This is despite much of the legislation only applying to employees. Duty of Care The duty of care is a common law duty to take reasonable care to avoid causing harm to others. Organisations have a duty of care towards their volunteers. Failure to meet that duty could lead to the organisation and its trustees being liable if a volunteer is injured. In practice reasonable steps should be taken to ensure that the likelihood and potential seriousness of injury to volunteers is reduced. Depending on the circumstances, this might include giving volunteers adequate information, training, the use of safety clothing or equipment, and supervision. Organisations with overseas volunteers in high risk locations, such as in disaster or war zones, should carefully consider the duty of care that is required and what the reasonable steps are in all the circumstances. Health and Safety Law There is 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 of care, and additionally demands information on health and safety to be provided. Corporate Homicide It is important that organisations consider their health and safety liabilities in relation to employees and volunteers following the enactment of the Corporate Manslaughter and Corporate Homicide Act For the first time, companies and organisations can be found guilty of corporate manslaughter as a result of serious management failures resulting in a gross breach of a duty of care. 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. This duty is from the Management of Health and Safety at Work Regulations 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.

4 However, the absence of risk assessments may suggest a failure to meet the required common law and statutory duty of care for volunteers. Risk assessments involve identifying hazards and risk. When working with volunteers it is advised to have an overall risk assessment for volunteer programmes and smaller risk assessments for individual roles. The actual method of assessing risk is not laid down in legislation. However, the Health and Safety Executive recommends a five-step approach to the process: 1. Look for the hazards. 2. Decide who might be harmed, and how. 3. For each hazard, evaluate the chance, big or small, of harm actually being done and decide whether existing precautions are adequate or whether more should be done. 4. Record the significant findings of risk assessment, such as the main risks and the measures you have taken to deal with them. 5. Review your assessment from time to time, and revise if necessary. It may be useful to create a table listing each hazard, the individuals who might be affected, the likelihood of someone coming to harm, the potential consequences, and the measures which should be taken to reduce the risk or remove the hazard. Some hazards may simply require information or training to be given to the volunteer while others may require changes to the way the programme is carried out, more supervision, protective clothing or equipment, or the avoidance of an activity. Health and Safety Policy Organisations with five or more employees also require 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. As well as being a basis for good practice, an effective policy also helps demonstrate that the duty of care is taken seriously. Volunteers should be included in the policy, have access to it, and be briefed on the policy during their inductions. An effective health and safety policy should include: A statement of intent setting out the aims and culture of the organisation regarding the safety of its paid staff, volunteers and others.

5 The person responsible for the policy to clarify who volunteers and other staff should report incidents to. The systems and procedures that should be followed, which may include procedures for first aid, accidents and fires. Health and Safety for Overseas Volunteers Extra consideration should be given to the health and safety of overseas volunteers, particularly in high risk countries and situations. It may be appropriate to have systems and procedures in place during the introduction of overseas projects and in-depth knowledge should be obtained by the organisations of the destinations to increase the safety of all volunteers. Organisations should also consider the day-to-day care of all participants in the field and it may be useful to provide volunteers with contact to the organisation s headquarters. Organisations should keep up to date with local and regional developments and Foreign Office advice. Updated health and safety assessments should be completed in relation to overseas projects where practicable. Possible Liabilities Liability for causing loss, damage or injury due to the failure to meet the duty of care depends on the structure of the organisation. With unincorporated associations and trusts, the members of the governing committee may be personally liable. With companies limited by guarantee, liability will generally rest with the organisation itself rather than with the individual governing body members. Trustees can be indemnified against such costs by their organisation. Further Reading Volunteer England - Five steps to risk assessment - Health and safety assessment -