Volunteers are a crucial resource for charities, and voluntary organisations often heavily rely on their volunteers to provide the assistance and services that they seek to deliver. Accordingly, organisations can find themselves in difficulties if those volunteers do not deliver what is expected of them and this has a knock-on effect on the charity’s services or events. It can therefore be tempting for charities to seek firm commitments from their volunteers, either by incentivising them to carry out duties, or by imposing consequences or sanctions if they do not. Either route, however, comes with the risk of a significant impact on the legal status of these volunteers.
If organisations accidentally create a contractual relationship with their volunteers this could mean that their volunteers acquire certain employment rights. The Supreme Court has long ruled that volunteers do not have the same legal rights as employees or workers. However, this means that charities need to be especially careful to ensure that their volunteers are genuinely treated as providing their services wholly voluntarily. Creating a relationship in which there is an obligation upon a volunteer to carry out a task (either because they receive something of value for doing so or face some form of penalty if they do not) is likely to give rise to a contract either of employment or as a worker.
Employment rights in the UK are determined by an individual’s legal status. There are several different types of employment status in the UK, however the two main categories are employees and workers. The distinction between the different types of employment status is important, as each category has different rights. For instance, workers are entitled to paid annual leave and the right to be paid National Minimum Wage and employees have additional rights, such as the right to be receive a statutory redundancy payment or bring an unfair dismissal claim. Both of these categories are also protected from discrimination under the Equality Act.
The key factor when considering what employment rights an individual may be entitled to in the UK, is whether there is a contract between the organisation and the individual. Charities should therefore be very mindful of this when asking volunteers to sign volunteer agreements. It is all too easy for a volunteer agreement to tip into the language of contractual obligations. The cost of getting this wrong can be high if this leads to subsequent Employment Tribunal claims being brought by volunteers who can then successfully assert that they are in fact workers or employees.
Accordingly, we have come up with some top tips to help organisations avoid invertedly creating a contractual relationship with their volunteers:
- As a general rule, volunteer agreements should use non-legalistic language.
- The agreement should set out the hopes and expectations of the parties and use flexible terms, such as “we suggest” and “we encourage”.
- It is generally ok to reimburse volunteers for actual expenses however, where possible, organisations should reimburse these against receipts.
- The agreement should permit a volunteer the freedom to choose when to provide their services.
- Organisations should endeavour to be fair – disputes often escalate when volunteers do not feel like that their concerns are being heard. The aim should therefore be to put in place procedures for volunteers to raise any concerns or complaints and these should not be ignored. However, this does not mean simply bringing volunteers within the scope of an employee grievance policy, or just relabelling this policy as a volunteer grievance policy. Organisations should think about how volunteers should raise concerns and make this a process that is fit for purpose.
- The agreement should not be too long or use language that could be construed as contractual. It should avoid saying things like “you must” and should not provide any consequences if the volunteer doesn’t do something requested under the agreement.
- Volunteers should not be paid in return for giving up their time, as any form of consideration could be misinterpreted as wages.
- The agreement should not provide for any benefits that could be classed as consideration and ideally benefits should hold no monetary value e.g. vouchers.
- The agreement should not seek to enforce any minimum commitment from a volunteer.
- Volunteers should not be subject to unnecessary staff policies which should not apply to them. In particular, volunteers should never be subject to disciplinary sanctions.
- If terminating an arrangement with a volunteer, organisations should avoid using words like “dismiss” as this is indicative of an employment relationship.
If you need any advice in relation to volunteers and/or creating a volunteer agreement, please don’t hesitate to contact Jasmine Sudworth who is an Associate in the employment team at Bates Wells and would be happy to help.