Question: Our charity often sends UK volunteers overseas to help deliver the charity's objectives. We always ask our volunteers to sign a form in which they declare that they are entirely responsible for their own safety and so forth. Would this hold water should anything go wrong? Also, our volunteers who go overseas often help children and other vulnerable groups. Should we obtain PVGs for these volunteers?
Answer: The latest statistics I could find on the number of volunteers in the UK suggests that around 15.2 million people volunteer at least once a month in the UK - a huge pool of talent and expertise and volunteering is of course something which is to be encouraged rather than discouraged! So, while my objective is not to put charities off from recruiting volunteers, there's a lot to consider within this question.
Volunteer or employee?
The starting point in ascertaining what your organisation's responsibilities are to a person who is considered to be a volunteer - whether they are carrying out activities here or abroad - is to consider whether they can truly be considered to be a volunteer, or whether the relationship is really one of employer and employee/worker (this is regardless of whether or not the person concerned has been given the title of 'volunteer' or otherwise). Unfortunately, there are no hard and fast rules about where the dividing line might be and it all hinges on the circumstances. You might have seen press reports recently about some bicycle couriers who are taking their companies to a tribunal in a bid to be recognised as employees, rather than being categorised as self-employed. The essence of the case is the extent to which the companies are entitled to tell the couriers what, when and how to do their jobs. Similar questions need to be considered when analysing whether a person is a volunteer or an employee (or a worker) including to what extent the organisation can dictate what, when and how they provide their services, whether there is an obligation to perform the work personally and whether there is a mutuality of obligation between the parties involved.
As I have said, it doesn't matter what title that person has been given, or even if they have signed a 'volunteering agreement'. There have been several employment tribunal cases where a person who has signed a 'volunteering agreement' is found to be an employee.
It is difficult to provide chapter and verse on this area of law within the limited space here other than to explain that the legal status of the person in question is important as it is that which determines the extent of the rights which they can exercise against the organisation. So, for example, a person who is considered to be an employee has important employment rights such as the right to claim unfair dismissal and the right to receive statutory redundancy payments (unlike someone who is truly a volunteer).
Does the declaration hold any water?
The answer to this depends on exactly what the disclaimer says. Having said that, whether the person is an employee or a volunteer, the law will impose on the organisation certain standards which it must meet in its dealing with that person. However that individual is categorised, he/she should have a reasonable expectation that the organisation will not put him/her in harm's way or at the very least that it will take steps to mitigate the risks to that person (which I appreciate can be challenging in some of the environments in which NIDOS members operate). This means that the enforceability of any disclaimer could be called into question, depending on the circumstances. It is probably irrelevant that the individual is volunteering abroad (as opposed to being in the UK).
It's stating the obvious but other countries have different employment laws and you should bear this in mind - a person who is considered in UK law to be a volunteer could be considered to be an employee in the country in which he/she is volunteering so you should check the local employment rules.
Do the charity regulators have any guidance on this issue?
OSCR (the regulator of Scottish charities) has not produced any guidance.
The Charity Commission, which regulates English charities, has issued guidance for charities which work internationally which can be found here. It's pretty general guidance but it does contain useful links to tools which may help organisations assess their risks in operating abroad including recommending steps to take to protect employees such as implementing security training - the same considerations should be applied to volunteers.
BS8848 is the British Standard for organising and managing visits, fieldwork, expeditions and adventurous activities outside the UK. It includes volunteering. It is not of course legally binding but having that Standard could be used to demonstrate that the organisation is using best practice in this regard.
Working with children and other vulnerable groups
The extent to which background checks and vetting must or should be conducted on those who work with children and other vulnerable groups on behalf of your organisation will again depend on the circumstances. The trustees of any organisation whose beneficiaries fall into these categories must find out what the relevant law is in the country in which it is operating, how it applies to their organisation, and make sure the organisation complies with it where appropriate. The Charity Commission has produced some brief guidance for charities working directly with children abroad which can be found here.
In addition, you should consider whether there are any agreed standards which it would be useful to follow. For examples of such standards, and audit tools which may help you to asses the risks, see People In Aid and Keeping Children Safe both of which contain information for international development organisations.
Policies and procedures should be put in place too (such as a child protection policy), but make sure those who need to know about these policies do! It is no good having well written and comprehensive policies if those who need to know about them are not aware of their existence or don’t follow them.
Whether or not you owe a legal responsibility, think about the charity's reputation and the potential harm to those who work with, and those who benefit from the work of, the charity
Even if the organisation has sought advice and put in place processes, policies and training which meet the relevant minimum requirements, it is worth considering if the trustees should go further and consider whether this is enough. After all, regardless of the legal implications, what can be much more harmful to a charity is the reputational damage when things go wrong.
Check your insurance
You should ensure that the organisation is insured against the risks of sending volunteers abroad. The Charity Commission recommends that, for insurance purposes, a charity should treat its volunteers in the same way as it treats its employees.
You should also insist that each volunteer takes out adequate insurance to cover their activities - the extent of the cover necessary will vary depending on what they will be doing.
Take professional advice
As always, if you are concerned about the legal status of your volunteers, or the contents of your written agreements with volunteers, then we would always recommend you should seek legal advice. Feel free to contact me for a no-obligation chat.
This Note is for information only, is not intended to be construed as legal advice and should not be treated as a substitute for specific advice.