Employment Status of Voluntary Workers

David Gray-Jones , partner and solicitor-advocate
Thomas Mansfield LLP
0207 426 4904

David has advised numerous charities, third sector organisations and employers in the healthcare sector on employee status and other employment law issues and has extensive experience of appearing as an advocate in employment tribunals and Employment Appeal Tribunal

The employment status of volunteers is likely to be something that may concern anyone dealing with human resources in the charity and third sector. There are a number of statutory employment rights in the UK. The most important of these include the right not to be unfairly dismissed and the right to be paid a minimum wage as well as protection against discrimination because of sex, race, disability, age, sexual orientation or religion or belief under the Equality Act 2010. What is the legal status of volunteers and are they protected by any statutory employment rights?

There is no single legal definition of a “volunteer”, but it is commonly understood to be an individual who spends time unpaid, apart from expenses, doing something which benefits a third party other than or in addition to a close relative. This is the definition in The Police Act 1997 (Criminal Records) Regulations 2002 and The Compact Code of Good Practice on Volunteering. “Voluntary workers” who work for charities, voluntary organisations, associated fund raising bodies and statutory bodies are specifically excluded from the provisions of the Minimum Wage Act 1998 provided they meet the conditions in the Act, which are that they do not receive payment other that reimbursement of expenses actually incurred or reasonably estimated to have been incurred and no benefit in kind apart from subsistence or accommodation.

As there are many different types of arrangement under which someone can spend time as a “volunteer” and so it is difficult to provide guidance which will cover every type of arrangement. However, the key question in most of the cases that have been reported is whether there is mutuality of obligation, that is, a legally binding commitment on the part of the volunteer to work for a minimum period and an obligation on the part of the organisation to provide work. In the case of South East Sheffield Citizens Advice Bureau v Grayson [2004] IRLR 353 the Employment Appeal Tribunal held that a volunteer working for a CAB was not a worker and could not make a disability discrimination claim when the volunteer agreement was terminated. The written agreement stated that it was not intended to be legally binding but simply set out the “reasonable expectations” of the parties. Therefore the “minimum commitment” of six hours per week was only an expectation and not a contractual obligation. The fact that expenses would be paid if the work was carried out did not create an legal obligation and did not of itself make the volunteer a worker.

A similar decision was reached in the recent case of Breakall v West Midlands Reserve Forces’ and Cadets Association UKEAT/0372/10, another disability discrimination claim. The Employment Appeal Tribunal found that there was no obligation to offer work to the volunteer and no obligation on the volunteer to personally perform work. This was fatal to the volunteer’s claim that he was a worker, and the fact that a capped allowance to replace lost earnings was paid on days when voluntary work was performed did not change the situation.

However, in cases where the arrangements were different Tribunals have found that despite the label of “volunteer” being applied to the arrangement the individual was in fact an employee or worker. In the case of Migrant Advisory Service v Chaudri UKEAT/1400/97 the Employment Appeal Tribunal upheld a finding that an individual who worked for four days per week for two years, was paid “expenses” of £25 per week, and subsequently £40 per week, even though no expenses were actually incurred and received holiday pay and sick pay, was an employee. In this case the finding that the payment of “expenses” was in fact pay for regular hours worked rather than reimbursement for expenses actually incurred was crucial.

It was recently argued before the Court of Appeal in another disability discrimination case that even if a volunteer at a CAB was not a worker or employee the volunteering arrangement amounted to an arrangement “for the purposes of determining to whom employment should be offered”, since it was in fact a form of recruitment exercise. X v Mid Sussex Citizens Advice Bureau and others [2011] EWCA Civ 28. The Court of Appeal rejected this argument as CAB volunteers were not automatically offered paid employment with the CAB. Although voluntary work might give an individual an advantage when applying for paid employment this was a by product of the volunteering arrangement and did not make the voluntary placement a recruitment process.

In practical terms the cases show that under the existing law a genuine volunteering arrangement, under which there is no legal obligation to provide work or carry it out and no payment other than genuine incurred expenses will not make the volunteer an employee or worker and so entitled to make statutory claims such as claims for unfair dismissal or to be paid the minimum wage, or discrimination claims under the Equality Act 2010. To ensure that volunteers remain volunteers and not employees or workers the following checklist is likely to be helpful:

Ensure that payment is only made for actually incurred and itemised expenses. A general payment for “expenses” may be construed as amounting to pay, particularly if made regularly;
Ensure that arrangements are set out in writing to avoid ambiguity, confusion or disagreement over the terms;
Try to ensure that it is clear that there is no legally binding obligations to carry out work or for work to be offered in the volunteer agreement. Avoid words like “you shall” or “you are obliged to carry out work” and instead make use of terms such as “it is hoped/expected that you will”

Kirsty Lewis, Partner and Head of the charity sector at Thomas Mansfield LLP, will be the keynote speaker for a seminar for TPP on Thursday 20th October 2011 which will be focusing on providing attendees with a roundup of recent case law.

To register your interest in attending this seminar, please email hrseminar@tpp.co.uk.

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