Volunteers – Employment Status
The third sector comprises a large number of volunteers and has done so for many years. Recently, though, the status of these individuals has been at the centre of controversy, due to various schemes (such as the Government’s “sector-based work experience scheme” which involves persons on unemployment benefit being obliged to carry out work experience, often for no extra money).
Controversy aside, what is the legal status of these individuals? With volunteering becoming more and more popular, it is important for both the volunteers themselves and those hiring them to understand the legal issues.
The most important point is that the status of these individuals can differ from person to person. Much will depend on the legal relationship. Sometimes a person can actually be an employee, despite being referred to as a volunteer. Take the case of Migrant Advisory Service v Chaudri UKEAT/1400/97. Mrs Chaudri was deemed to be a volunteer by the Migrant Advisory Service. She did administrative work four mornings a week for two years, being paid “volunteer’s expenses” (despite the fact she incurred no expenses). Mrs Chaudri was also paid while on holiday or off sick. The Employment Tribunal (and Employment Appeal Tribunal) held that Mrs Chaudri was actually an employee, as she was paid for work.
If a volunteer is in fact an employee, such as Mrs Chaudri, then he or she is entitled to a higher level of protection. For example, as an employee a person may pursue a claim for unfair dismissal or discrimination: a volunteer may not.
Employee or Volunteer? Practical Tips
So what will a court or tribunal take into account when deciding whether a person is an employee or a volunteer? Various cases have provided us with guidelines. These are neither exhaustive nor definitive, but can be useful.
- Payment. Any payment made to volunteers should be strictly as reimbursement for expenses. It is suggested that receipts are kept in order to identify how much has been paid and why. Any payments to volunteers which could be deemed to be wages would result in an increased likelihood of a tribunal deciding that the person is in fact an employee, working for money.
- Obligations. Volunteers should be given more free rein to decide how to spend their time than employees. In circumstances where a volunteer is obliged to do certain tasks within certain timescales, the organisation is running a greater risk that a tribunal will consider the person is employed. Organisations should expect volunteers to decide when or if they will be working and accept that they do not have the same degree of control as they would have over employees.
- Perks. In a similar vein to the payment point above, organisations should restrict providing volunteers with perks which could be seen as a substitute for payment.
- Agreements. In a written volunteer agreement, the language should be carefully constructed to ensure the agreement is flexible and not a binding contract of employment. Use terms such as “we hope” and “we would prefer”. It is recommended that an express statement is included, making it clear that neither party intends any employment relationship to be created.
The benefits of volunteering are obvious, to both volunteer and organisation alike. However, it is imperative that both parties are aware of the volunteer’s status at the outset.