Volunteers give up their free time to support charitable organisations and there is often the temptation to provide benefits as a way of saying thank you. But be careful. Well-meaning charities have come unstuck by providing volunteers with benefits that are too generous, inadvertently leading to an implied employment relationship.
Why does it matter?
In employment law there is a differentiation between the legal status of an ‘employee’ and a ‘worker’. While an employee enjoys more rights than a worker, both are entitled to be paid the National Minimum Wage, paid holidays and rest breaks. A volunteer, on the other hand, has much more limited rights. Volunteers are not protected under discrimination law whereas employees and workers are. An employee can also bring a claim for unfair dismissal. Even if you label someone a ‘volunteer’, it does not necessarily mean that you are safe. A tribunal will look at whether there is an intention to create, or whether in reality it is, a working relationship. In doing so, the tribunal will assess, among other things, what remuneration and /or benefits were given to the volunteer in exchange for their time and decide whether this amounts to an obligation to work.
What’s the risk?
Where a volunteer is found to be a worker or an employee, you will need to pay these individuals the National Minimum Wage as well as comply with various other employment obligations relevant to their employment status. In cases where the courts have held that there was an employment relationship, claims for unfair dismissal and discrimination have been allowed to proceed in the employment tribunal against the charity. Such claims can be extremely costly, not just in terms of legal fees and compensation but also damage to reputation.
What benefits can I offer?
It is very important that the benefits you offer are a genuine reimbursement of your volunteers’ out-of-pocket expenses, or are needed in order for volunteers to sufficiently perform their duties. Anything beyond this could be seen as a ‘benefit in kind’ and you risk your volunteers acquiring worker or employee status. It is recommended that you review the benefits you currently offer to volunteers to ensure that you only provide what is necessary. When considering benefits, bear the following in mind:
- Expenses – should be a genuine reimbursement of out-of-pocket expenses rather than a fixed amount or a monthly or weekly ‘allowance’;
- Training – will not be considered a benefit in kind if it is; i) necessary to perform the duties of the voluntary work; or is ii) necessarily acquired in the course of the voluntary work; and iii) is for the sole or main purpose of improving the volunteer’s ability to do the role;
- Food and drink – reasonable provision of food and drink during the volunteering day should be fine;
- Uniforms and equipment – can be provided so long as this is reasonable and required for the volunteer to perform their duties;
- Free entry to events – should be acceptable provided this is necessary to carry out the role;
- Rewards, gifts and other benefits in kind – a genuine gift or reward with no obligation and of small value is unlikely to change a volunteer’s status. But take care to ensure that this could not be seen as a ‘reward’ for undertaking work in exchange for gifts.
- Ensure your volunteers are only reimbursed for expenses actually incurred;
- Ensure that any expenses claimed are reasonable;
- Keep a record of expenses claimed and receipts – it is a good idea to use a standard expenses form;
- Avoid giving volunteers regular rewards or gifts;
- Only provide training to your volunteers if you consider that this is necessary.
For any advice contact our specialist employment team on 01392 207020 or e-mail email@example.com