When is a volunteer an employee & what’s it going to cost when it all goes wrong? By Alan Pavey

When is a volunteer an employee & what’s it going to cost when it all goes wrong? By Alan Pavey

 

For those who don’t know, I have some quite major interests in voluntary organisations when I’m not in the office, this is now starting to become even more of an interest as the law from my work environment influences my voluntary time. One thing that has taken my mind this week is the UK law in relation to employment and where the line sits between the volunteer and an employee. Those who know me will understand that this part of UK legislation fascinates me, due to its somewhat dubious level of protection for people who do nothing but try to support businesses with total dedication (in some cases) and no wages!

(I’d suggest a large glass of wine and snacks prior to reading any further)

A quick example is that most volunteers are not protected by law such as the Disability Discrimination Act, to name but one.

Volunteers are not protected by anti-discrimination employment law, according to a ruling made by the Supreme Court a year or so back.

The ruling in the case of X v Mid Sussex Citizens Bureau confirms that to be covered by this anti-discrimination legislation, an individual must have a contract – and that a wage is ‘highly relevant’ as well; a ‘volunteer agreement’ does not constitute a contract of employment in most cases.

This is staggering when you think about it, people putting in literally thousands of hours of work, and we refuse to protect them as we would someone we have to pay monies to employ?

On the flip side of this, some businesses see fit to control and manage their people, including volunteers under a singular set of policy documents and see this as being sufficient. These policy documents extend to everything, from what’s classed as reasonable behaviour within their HR policy to the use of social media and IT within other policies.

What then immediately becomes apparent, is by definition they treat the ‘volunteer’ as an ‘Employee’ (even in the wording). Whilst more recent case law shows that verdicts in relation to this subject have various outcomes when tested, the powers that be are fast heading towards testing businesses to see if claimants are managed as employees, despite a title of volunteer, and finding in favour if this is proven.

So, where and how do our volunteers gain some well needed protection, outside of poorly written policy and a total misunderstanding of what’s current?

(Enter the valiant knight on his white charger)

One place of solace would be…. (loud trumpet sounds) The Equality Act 2010; so what happened prior to this act?

Previously, volunteers had no protection either from discrimination or unfair dismissal, unless they could show at tribunal, that they were a worker or an employee. To count as a worker or employee, the volunteer must show that a contract existed between themselves and the organisation. Where a volunteer successfully argued that there was a contract and as such, counted as a ‘worker’ or an ‘employee’, they would be entitled to receive National Minimum Wage – and also have rights not to be discriminated against or dismissed unfairly.

(yes, that’s right…. Minimum wage and backdated payments if the tribunal ruled in favour of the claimant!! £££££££££££ )

A contract is not only a written document – it’s more a way to describe a relationship: the individual works and in return receives some pay or benefit – which looks and feels as though it creates a binding agreement.

In practice, the payment or benefit (the “consideration”) doesn’t have to be a lot. It can be small – such as training, unrelated to how the person volunteers or has volunteered to that point, or some money provided beyond what the volunteer spends solely in expenses. It’s only been through claiming they are ‘workers’ or ‘employees’ that volunteers have been able to receive legal protection from discrimination at work in their voluntary capacity.

Now post Equality Act, how are volunteers protected?

(The knight on a slightly off white charger?)

Understandably as volunteers weren’t protected by discrimination law before the Equality Act 2010, many would not expect it to now – particularly since there is no mention made of volunteers in the Equality Act itself.

However, the Equality and Human Rights Commission, which produces statutory and non-statutory guidance for the Equality Act, has indicated that volunteers would be protected as ‘service users’: it states that in involving volunteers with their organisation, organisations are effectively offering them a service.

So, in reality If you provide a service to the public (whether that’s as a community centre, an advice-provider, a shop, a club, a society, a website, a care home or a private club/association with over 25 members, to name but a few…) the Equality Act 2010 applies to your services.

This then means that volunteers would be among the service users protected from discrimination.

The Equality Act 2010 protects service-users (or was that volunteers?) on the grounds of their:

  • Disability
  • Gender reassignment
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

Service users are also protected from the following kinds of discrimination:

  • Direct discrimination (this includes discrimination by association and discrimination by perception)
  • Discrimination arising from a disability
  • Indirect discrimination
  • Harassment
  • Victimisation
  • Failing to make reasonable adjustments
  • Service users are also explicitly protected from discrimination if they are breastfeeding.

This means that if you are running an organisation that uses voluntary people it might well be time to re-visit ALL of your policy and documentation, it might also be time to re-train your management team, as a single slip even just within the way they have worded something could well be very costly!

(This is possibly the point to get that second glass of wine!)

So how can you minimise the risk of a Contract Situation within your organisation?

While your organisation might be concerned about entering into a contract situation with volunteers, it is still important that organisations manage volunteers well.  Structures and documentation form an important part of this process.  The effective management of volunteers does not have to mirror your employment practices.  Most importantly there are some practical ways to minimise the risk of contract situation.

Reduce the formality of your documents:

It is good practice for volunteers to be provided with documentation to help them carry out their role.  Look at the documents you give to your volunteers.  Is the language used formal or similar to employment documents?  Volunteers’ documents should be less formal and more in tune with the voluntary nature of the relationship.

As an example, it is good practice for volunteers to have recourse if they have a complaint or to develop a structure to deal with a problem.  However, the process does not have to be as detailed as that you would use for employees, it’s important that the people who use the policy are comfortable with how to do it and who they have to deal with, otherwise it’s worthless!

Review the language you use:

This used to be known in finance houses as a ‘Plain English Policy’ and it works!

Avoid using language that is indicative of employment e.g.:  ‘Volunteer agreement’ not ‘contract’ , ‘Volunteer role’ description not ‘job description’, ‘Reimbursement’ not ‘payment’ , ‘Arrangements if there are problems’ not ‘disciplinary procedures’ , ‘Arrangements if you have a complaint’ not ‘grievance procedure’ , A volunteer agreement is the main tool for setting the nature of your organisation’s relationship with each volunteer.

It’s also important to tell people why they are being given or educated about a piece of documentation, that way they will understand that it’s as much protection for them as well as the organisation they are getting involved with.

When outlining what you would like volunteers to do, talk about ‘expectations’ and ‘intentions’ as opposed to ‘requirements’ and ‘obligations’.

For example, ‘as you indicated you will be available to volunteer for 6 hours per week on Tuesday and Wednesday’, rather than ‘you will be required to work 6 hours per week on Tuesday and Wednesday’.

It is worthwhile stating on volunteer agreements that the agreement is binding in honour only and not intended to be legally binding.  However, this will in no way protect you if in practice an employment relationship exists.

It is also important to consider whether the document is signed; in practice if it is intended to be binding in honour only, then it does not need to be signed. Equally, documents that are not signed are tricky to manage, especially when you update them. As you have no proof that an individual is / has been made aware of the changes made, or even the existence of the original document. I have watched tribunals pull highly accredited individuals apart for not being able to prove an (ex)employee has been made aware of a document, read and understood it.

What happens if you do paid work within one side of an organisation or charity, but you also volunteer? When an organisation has someone, who is both a volunteer and on another occasion a paid member of staff, the organisation needs to have clear boundaries as to where the line sits between the two positions. Ideally these should be identified within the initial conversations prior to employment and clearly defined within the employee and volunteer sides of their contract / volunteer agreement. The risk with this situation is that the organisation has dual exposure from both sides of this contract or agreement, when (as an example) a volunteer suffers an inappropriate behaviour or situation from a member of employed staff or another volunteer, as this could then be managed under either their voluntary status or employed status due to unclear lines between the two.

It’s also possible that there is policy in place within HR that allows for management of people whilst they are in the work place but not being paid. This situation is highly complex and can only be managed by clear definition within a company’s documentation; it really is an absolute necessity that ALL parties understand how their involvement and participation effects both their rights and the organisations ability to functionally communicate and work with them for a mutual good.

To conclude, organisations need to get this right – not only to protect themselves but to protect their people, both volunteers and paid staff. Without separate policy and policy wording along with clear definitions and understanding of the lines between voluntary and employed work, they are leaving themselves wide open to both bona fide and speculative claims. They are also failing to protect the interests of some of their most devoted people in the form of volunteers.

The way that the interaction between all of the instances I have mentioned works is a nightmare in the making for some already well established organisatons and, what’s more, should not be handled by anyone who doesn’t fully appreciate the implications of all of its narratives and complexities. By trying to support volunteers the Equality and Human Rights Commission have inadvertently opened a huge and complex cross-over within the function of people management. I’m personally aware of at least 4 organisations locally that fall in this trap, what’s more concerning is that most of them don’t employ or have the voluntary support of properly experienced individuals who can help to manage the issues. Whilst this is complicated enough, it really is the just the top of an ever-increasing iceberg of legislation and documentation to regulate what should be a simple process.

Long live the volunteer, or was that service user?

 


 

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