When is a volunteer not a volunteer?
Volunteers are an essential resource to many not-for-profits, charities and businesses. Without them, many of these organisations would simply grind to a halt. However, many organisations under-estimate the legal implications of using volunteers. Whether they are an integral part of daily operations, or simply a few people who “help-out” every now and then, there is a risk that you can accidentally fall foul of minimum wage or other legislation.
Volunteers Vs Employees
The key concern is whether your volunteers may legally be classed as employees. It can be tempting to involve volunteers in employee activities to show appreciation for their contributions, or to find other ways to ‘reward’ volunteers through the services that you provide. However, this can have implications as to whether they are due minimum wage and how it should be managed if something goes wrong with the relationship. Falling on the wrong side of either can create a potentially costly risk to your organisation.
In the case of a dispute, there are a number of ‘tests’ that are applied to identify whether it is believed an employment relationship exists rather than the intended volunteer status. The law is rarely definitive in such areas and organisations will want to avoid this being tested for them in an employment tribunal.
In many cases there is no real choice except to use volunteers, but there are actions you can take to minimise the risks and provide firmer ground for building your volunteer network. Dependant on the context, some organisations may decide to ‘take the risk’ and ignore one or more of the suggestions below. We are aware that running any organisation is often about balancing different risks, but believe that any decision to do so should be made consciously with consideration of all implications. Essentially, the overall suggestion is to ensure that volunteers are treated differently from employees.
- Ensure that volunteers are not provided with a contract – instead consider a simple engagement agreement which is understood not to be legally binding but merely sets out what is agreeable.
- Do not pay volunteers anything such as allowances, bonuses, pay, etc. Reimbursement for genuine expenses should be the only thing ever paid.
- Equally no reward or benefit may be given for work – no expectation of future employment, no ‘freebies’ or benefits of any kind. Anything of this nature implies compensation for work done and therefore more of an employment relationship. Remember some of these benefits would incur tax to an employee, and so should naturally ring alarm bells.
- In any written or verbal communication, steer away from words which may imply employment. Words such as “obligations”, “contract”, “job description” etc. Instead use phrases such as “arrangements”, “mutual agreement”, “volunteer role”.
- Although volunteers need to be treated with the same respect and value as employees, it is essential that there are some material differences between how each part of your workforce is deployed.
- Avoid any reference to commitment to specific hours or minimum hours. Instead all activities should be optional on both sides. Of course, forward planning is essential and a rota or written agreement is fine, but these items should be written in such a way that there is no explicit (or otherwise expected) obligation. Practice must also reflect this in reality.
- Provide simplified processes for your volunteers, separate from those used for employees. For example, a complaint process as opposed to a grievance policy, a “what to do if…?” document with a few questions that might arise rather than a handbook or policy document.
Training and development
Volunteers need to be equipped for the role that they undertake, and so there are no concerns with providing necessary training. Any training or development that is for the benefit the volunteer personally, rather than to perform their role safely and competently, can create more difficult ground. Organisations should avoid mandating training days as this poses an obligation on the volunteer, and instead offer mutually agreed training days. Likewise, there should be no obligations on the volunteer in exchange for receiving training. Volunteers cannot be rewarded for training – legitimate expenses can be paid as usual, but volunteers should not be paid or rewarded to attend.
Registered Charity status
There is some debate as to whether any organisation that does not have Registered Charity status is able to legally take on volunteers at all, without falling foul of minimum wage legislation. If you do not have registered charity status then you must be aware that your risks are therefore increased. The specifics are yet to be fully clarified by case law, and I suspect that no one is in a hurry to be express about the potential incompatibility here, due to the significant impact this could have across the country.
In the mean time, countless organisations continue to rely on volunteers as a vital addition to the workplace. The benefits of voluntary work to both the volunteer and the organisation they work with can be immeasurable. It is essential that practical considerations are made to protect the longevity of these valuable arrangements.
If you would like an informal chat about the way that you manage your volunteers feel free to get in touch.