LIABILITY FOR VOLUNTEERS: ENGLISH EMPLOYMENT LAW RIGHTS

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1 LIABILITY FOR VOLUNTEERS: ENGLISH EMPLOYMENT LAW RIGHTS Sophie Hay Reed Smith Type: Legal guide Published: July 2011 Last Updated: July 2011 Keywords: Employment; volunteers; liability; discrimination.

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 This guide offers advice to NGOs on the legal liability of volunteers, particularly overseas volunteers. The guide only covers liability under English law and therefore local law advice should be considered when there is an international element, although many of the broad principles may still be relevant. The guide provides suggestions for organisations when considering liability for volunteers, although it is accepted that small NGOs may not have the resources necessary to implement all of the recommendations set out in this guide. Organisations should aim for proportionate policies which take into account all the relevant characteristics of the organisation. This guide covers an overview of employment law rights, including discrimination law and the national minimum wage. More in-depth information can be obtained by following the useful links at the end of the guide. Employment Law What is the difference between a Worker and an Employee? It is important to establish the status of an individual, whether they are an employee, worker, volunteer or self-employed, as this will determine what legal rights are available to them. An employee is an individual who has entered into a contract of employment which is a contract of service (including an apprenticeship). The concept of a contract of service has been highly debated in the courts and is different from a contract for services for the self-employed. A worker is an employee or an individual who works under any other contract where an individual agrees to personally perform any work or services for another party. Organisations must apply certain tests to establish whether an individual is an employee or a worker. The two tests in particular are especially applicable to volunteering relationships relate to control and mutuality of obligation.

4 Control Test Courts and tribunals consider how integrated an individual is in an organisation, the level of control individuals have over their work and the organisation of the work itself. An employee would be expected to be under more control than a worker. In terms of volunteering, additional factors could be whether there is a duty to obey orders and the option to choose hours of work. Mutuality of Obligation Test Mutuality of obligation is the obligation on the employer to provide work and the obligation on the individual to accept it. Factors for this test include whether the person is doing work on a regular basis and if there is a right to refuse work. Tribunals have found that this is an essential element to be considered a worker, and it may also be considered to decide if an individual is an employee. Certain legal rights only apply to employees ; however, rights are increasingly being granted to workers too. Volunteers do not have access to many of these rights. An employment or worker relationship can however be created unintentionally. This may result in an organisation breaching several areas of legislation if it fails to consider an individual s employment status and the consequences. Rights of volunteers The following are some of the main rights that volunteers may be entitled to if they are deemed to be engaged as a worker or an employee: Workers and employees: To be paid the national minimum wage (see below) To protection under discrimination legislation Not to be required to work more than 48 hours per week on average To four weeks' paid holiday each year (pro rata) Employees only: To more protection under health and safety legislation (see Part II) To receive statutory sick pay

5 To receive statutory maternity, paternity and adoption pay Not to be unfairly dismissed The absence of a written contract does not provide an organisation with protection from the possibility of volunteers being classed as employees or workers. This is because a contract of employment or a contract with a worker can be made both orally and in writing. Are volunteers covered by Discrimination Law? Some unpaid workers could be entitled to protection under discrimination law if they have a legally binding contract "personally to do work" or if they are in a work experience or vocational training placement. All organisations should make sure they do not perform any acts which may be considered discriminatory. However, a 2011 Court of Appeal case held that because a volunteer's arrangement with a charity was not based on an oral or written contract he could not continue a discrimination law claim under the Disability Discrimination Act This case applies equally to the Equality Act 2010 which has replaced the 1995 Act. The Equality and Human Rights Commission have suggested that an appeal may be brought against this decision, and the question of whether volunteers are covered by discrimination legislation may be re-opened. National Minimum Wage The national minimum wage came into force in April It applies to workers as well as employees. Organisations are required by law to ensure that their employees and workers are paid at least the minimum wage for their age band. The current minimum wage rates are available from the Directgov website (see Useful Links). Workers, employees and HM Customs and Revenue compliance officers can require that organisations produce evidence that they have paid the national minimum wage. If they fail to do so, the worker or employee can bring a case to an employment tribunal. There are special rules for volunteers in certain organisations, such as charities and voluntary organisations. People working for these types of organisations are not entitled to the minimum wage if the only money they receive is in respect of expenses

6 (other than accommodation expenses) which are reasonably incurred in order to enable the volunteer to perform his duties. There have been examples where volunteer workers have been considered employees and entitled to the minimum wage, including where there was a 5 daily flat rate for volunteer s expenses rather than a procedure for claiming back actual expenses. Organisations with overseas volunteers should make sure that any expenses that the volunteer obtains are reasonable in all the circumstances, e.g. living and transport costs. Practical Tips to Avoid Volunteers Being Classed as Employees or Workers Only give volunteers out of pocket expenses and collect receipts and transport tickets. Reduce perks that could be seen as a type of income, or describe the perks as discretionary. Acknowledge that volunteers are free to leave at any time, but suggest that if they stay in the position for at least the specified time they, and the organisation, will get the most out of the experience. Avoid contractual terms such as contract, job, payment and replace with agreement, role and reimbursement of expenses. Complete a volunteer agreement including: This agreement is not intended to be a legally binding contract between us and may be cancelled at any time at the discretion of either party. Neither of us intends any employment relationship to be created either now or at any time in the future. Create separate policies regarding recruitment, supervision, problem-solving and other aspects of the individual s relationship with the organisation that are unique to volunteers. Further reading Volunteer England - Work Status - esandselfemployment/dg_

7 National minimum wage