JANE KLAUBER

Russell-Cooke LLP

VOLUNTEERS OF TODAY

Volunteer Status

No single legal definition: volunteers defined by not

being employees or workers

Employment: mutuality of obligation, personal service,

control

Workers: personal service

A gift relationship

All documentation and arrangements should avoid

creating a legally binding contract

The discrimination legislation does not cover genuine

volunteers

Avoiding a legally binding contract

No payments except to reimburse verifiable expenses

Remove/minimise perks that could constitute consideration

e.g. training beyond what is required for the volunteer role

Avoid contractual language in the volunteer

agreement, refer to expectations and aspirations

Access to staff procedures are not appropriate

A Reminder of the Cases

Migrant Advisory Service v Chaudri 1997

Worked four mornings per week

Paid £40 “expenses”

Paid when on holiday or sick

Held she was an employee

Murray v Newham Citizens Advice

Bureau 1999

Claimant alleged disability discrimination based on his rejection as a

trainee adviser due to a history of mental illness

The agreement he would have to sign specified weekly hours, a

minimum period of notice of absences and reasonable notice before

leaving

He would receive training and support and reimbursement of travel

expenses

The agreement set out disciplinary and grievance procedures

Held: employed

South East Sheffield Citizens Advice

Bureau v Grayson 2004

Mrs Grayson claimed discrimination when her volunteer role was

terminated

Discrimination claim defended on basis she was not in employment

The fact the agreement was not signed and it stated it was to “clarify

the reasonable expectations” of the parties suggested it was not

intended to be legally binding though the fact it was not signed was not

conclusive.

Held: that an agreement that describes its purpose as such is not the

language of contractual obligation

….continued

Reference to the “usual minimum commitment” of six hours per week

was an expectation; there was no sanction if minimum hours were not

worked

A request for as much notice as possible of leaving was a reasonable

component of the volunteer relationship, it did not imply a contract

The key issue was whether the agreement imposed contractual

obligations on the parties and it was held that Mrs Grayson could leave

at any time and the CAB would have no contractual remedy against

her

Held: she was not employed

Melhuish v Redbridge Citizens Advice

Bureau 2005

Unpaid volunteer was not permitted to take an unfair

dismissal claim

The existence of required standards did not create

mutuality of obligation

The provision of training courses was not enough to

represent remuneration

X v Mid Sussex CAB 2013

CAB adviser claimed disability discrimination arguing her volunteer

agreement amounted to employment or an arrangement for

determining who should be offered employment since CAB volunteers

often became paid advisers or was a work placement

Held: No legally binding contract

The volunteering was not for determining who should be offered paid

employment, the likelihood was only a by-product of volunteering

She was not undertaking a work placement because the volunteering

was not for a limited period nor for the sole or dominant purpose of

vocational training

Breakell v West Midlands Reserve

Forces and Cadets Association 2010

The fact a volunteer was paid a capped allowance

to compensate for earnings on days he

volunteered did not mean he was under a

contractual obligation to work

National Minimum Wage

Voluntary workers who work for charities are not entitled to NMW

if:

They receive no monetary payment except reimbursement of expenses

incurred or reasonably estimated as likely to have been incurred in the

performance of their duties

They receive no benefits in kind other than reasonable subsistence or

accommodation

May receive subsistence payments where engaged as a result of tri-

partite arrangements between two voluntary organisations

No specific NMW exemption Like volunteers, interns will be

workers and entitled to NMW if they provide a personal

service

Government guidance emphasises status does not depend

on job title and interns will be workers if they provide a

personal service

Work experience placements of less than a year as part of

a UK higher or further education course are exempt from

NMW

Interns

Interns (cont)

Any arrangement for payment or the promise of a

job at the end of the internship is likely to confer

worker status

Government is encouraging payment of interns.

CIPD report in 2010 found 37% unpaid

An intern engaged by a self-employed production designer

as an assistant on an “expenses only” basis was a worker

and entitled to NMW

An intern who worked for a publishing company for two

months, responsible for a team of writers, scheduling

articles, hiring new interns, was a worker and entitled to

NMW and holiday pay

The Cases

Vetting and Recruitment

Enhanced check for regulated activity with Disclosure and

Barring Service if working with children and vulnerable

adults

Data Protection

Same obligations as for employees and the Vol agreement

should contain appropriate provisions

Intellectual Property

IP rights will not automatically vest in the employer and

organisations should ensure Vols sign an assignment of

their IP rights

Other Issues

Harassment

An employer could be liable for harassment by volunteers

as its agent

Health and Safety

Employers must ensure as far as reasonably practicable

that non-employees are not exposed to risks to their H & S

Volunteering England recommends organisations include

Vols in their H&S policy (and take out appropriate

insurance)

Other Issues (cont)

Contact Details

Jane Klauber

Partner

020 8394 6483

Jane.klauber@russell-cooke.co.uk