© Thomson Snell & Passmore 2011 Volunteers and the law A few thoughts James Willis Senior Associate...
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Transcript of © Thomson Snell & Passmore 2011 Volunteers and the law A few thoughts James Willis Senior Associate...
© Thomson Snell & Passmore 2011
Volunteers and the lawA few thoughts
James Willis
Senior Associate
D: 01892 510000
23 March 2011
Wednesday 19 April 2023 2
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
Wednesday 19 April 2023 3
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?
Wednesday 19 April 2023 4
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)
Wednesday 19 April 2023 5
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
Wednesday 19 April 2023 6
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
Wednesday 19 April 2023 7
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
Wednesday 19 April 2023 8
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
Wednesday 19 April 2023 9
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
Wednesday 19 April 2023 10
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
Wednesday 19 April 2023 11
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
Wednesday 19 April 2023 12
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
Wednesday 19 April 2023 13
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?
Wednesday 19 April 2023 14
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
Wednesday 19 April 2023 15
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
Wednesday 19 April 2023 16
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?
Wednesday 19 April 2023 17
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
Wednesday 19 April 2023 18
Questions?