Volunteers and the law

Volunteers and the law A few thoughts James Willis Senior Associate james.willis@ts-p.co.uk D: 01892 510000 23 March 2011

What are we going to cover? • Why is volunteering an issue right now? • Which rights apply to whom? • Employees, workers and volunteers – what is the difference? • Health and safety and insurance • National minimum wage and expenses • Internships • A real life case study – X v Mid Sussex CAB • And what about religious discrimination? • Action points

Why is volunteering an issue right now? • The ‘Big Society’ initiative • The coalition government is encouraging local people to run local services • Other government initiatives (e.g. internships) • The economic climate • People are looking to improve their CVs • People are looking to gain valuable experience • X v Mid Sussex CAB • One for the lawyers?

Employees, workers and volunteers – which rights apply to whom? • Employees have considerable rights: • Protection from unfair dismissal • Protection from discrimination • National minimum wage • Paid holiday and time off • And many more… • Workers also have important rights: • Protection from discrimination • National minimum wage • Paid holiday and time off • True volunteers have very few rights (if any)

What is an employee? • Someone who works under a contract of employment • This means looking for… • Control • The master-servant relationship • What, where, when, how etc • An obligation on the person to provide work personally • Mutuality of obligation • “I agree to undertake work; you agree to provide me with work and pay me for it.” • Other factors • Integration • Consideration • Intention to create legal relations

What is a worker? • A person who: • works under a contract of employment or any other contract where they undertake to perform services personally; and • who is not in business on their own account • Other factors: • Consideration • Intention to create legal relations

What is a volunteer? • Someone who gives their time to help an organisation or an individual without pay • True volunteers should be neither employees nor workers • There should be no legally binding agreement • There should be no obligation on the volunteer to undertake work and no obligation on the organisation to provide it

Health and safety and insurance • Even volunteers are owed a duty of care by the organisation with which they work • Organisations must take all reasonable steps to reduce the likelihood of harm • Written risk assessments are a good idea • Insurance – make sure that you are covered

National minimum wage and expenses • A genuine volunteer will not be entitled to the national minimum wage • Consider the terms of the volunteer agreement carefully • What about expenses? Out of pocket expenses only – avoid flat rate arrangements

Internships • The Government is encouraging internships • (eg Graduate Talent Pool initiative) • If it’s good enough for MPs? • A good way of providing people with valuable work experience • The “employer” may find a person that they want to keep

Internships (continued) • Interns are likely to be employees/workers if: • they are doing a real job (not just work-shadowing) • they are contributing to the business • they have a list of duties • they have set hours • To minimise the risks, you need to ensure… • no formal agreement • no obligation to work • no expectation of being paid • Consider the CIPD Code of Practice

X v Mid Sussex CAB – a real life case study The facts: • X volunteered to work for the Mid Sussex Citizens Advice Bureau • Volunteer agreement said it was “binding in honour only…and not a contract of employment or legally binding” • X was under no obligation to work and often failed to attend • The CAB did not object to this • The CAB asked X to cease her volunteer work • X brought claims of disability discrimination

X v Mid Sussex CAB – a real life case study (continued) • The case went all the way up to the Court of Appeal • The Court of Appeal ruled that:- • volunteers are not covered by the Disability Discrimination Act 1998 • far from obvious that it is desirable for volunteers to be covered by discrimination legislation • had the law been intended to cover volunteers, it would have said so • no reason to suppose that the law is intended to cover unpaid work • This decision suggests that a similar outcome is likely, whatever form of discrimination a volunteer claims But watch out for an appeal to the Supreme Court?

And religious discrimination? Masih v AWAZ FM Limited The facts: • Reverend Masih was a Christian Minister • He co-presented a radio show for a community radio station • His engagement was terminated after 6 years, following complaints arising out of a controversial “on air” phone in discussion • He brought a claim of religious discrimination

Masih v AWAZ FM Limited • The Employment Tribunal found that: • Masih was not protected • He was not working under a contract of service or apprenticeship • He was not contracted to do work personally • Therefore there was no enforceable contract • But the ET was persuaded to refer the case to the European Court of Justice • Will this case go any further? We don’t know quite yet

What if volunteers are covered by the Equality Act 2010 • What if having (or not having) a particular protected characteristic is an “Occupational Requirement”? • Is the “employment” for the purposes of an organised religion? • Does the “employee” need to be of particular sex, sexuality, marital status in order to avoid conflicting with strongly held religious convictions? • Likely to cover only limited post (minister of religion, small number of lay posts) • Example: catholic priest must be male and unmarried • Does the “employer” have a religious ethos? • Does the “employee” need to be of that religious belief? • Again, likely to have very limited scope • Example: a catholic school may require its Principal to be catholic. But what about the cleaners?

Action points • Review your volunteer agreements • Avoid creating obligations of any sort • ‘Hopes’ and ‘expectations’ at most • Review your volunteer work outline (job description) • Treat volunteers in line with Equal Opps policies as much as possible • Review your expenses policies • Check risk assessments and insurance arrangements

Questions?

Volunteers and the law