Most voluntary organisations will have a combination of employees (or workers) and volunteers, and the difference is significant.
Workers and employees are entitled to employment rights that volunteers are not such as the right be paid the National Minimum Wage (NMW), paid holidays and protection against discrimination under the Equality Act 2010. If a volunteer successfully claims to be an employee or worker then they would be entitled to NMW including backdated pay. They would also have the right to bring a claim in the employment tribunal for discrimination (amongst other things) which could lead to costly proceedings.
When is a volunteer not a volunteer?
Simply calling someone a volunteer does not necessarily mean they have this status, even if the individual doesn’t object at the time. If you provide income or benefits to a volunteer, or there is an obligation on your behalf to provide work together with the obligation of the individual to personally do the work (in legal terminology a “mutuality of obligation”), you risk a finding that your ‘volunteers’ are actually employees or workers, with all the legal requirements that entails. Putting a written volunteer agreement in place can help to substantially reduce this risk.
What is a volunteer agreement?
A volunteer agreement will normally set out the reasonable expectations of both the organisation and the volunteer. This is very different from an employment contract and it is important to ensure the language and content are appropriate.
What should the volunteer agreement say?
Volunteer agreements should not to be too formal, or use language which implies that the conditions could be contractual. To do so could lead to a finding that there was an obligation to work and that the volunteer is actually seen as an employee or worker. The agreement should not be referred to as a contract and should provide for a flexible arrangement – imposing a fixed work pattern may risk being seen as a contractual obligation. It is better to set out a preferred schedule, making it clear that the organisation is flexible about time commitment. A volunteer agreement may cover the following:
- Information about the volunteer role;
- Reimbursement of reasonable expenses;
- Details of the volunteer’s named supervisor;
- Details of your equal opportunities policy;
- Full induction training;
- Health and safety practices;
- Insurance for volunteers;
- The volunteer is to follow the spirit of the organisation’s policies and procedures;
- An indication that the volunteer will be expected to attend at a mutually agreed time, or give notice if not possible.
If you already have a volunteer agreement it is recommended that you review this to ensure that it is fit for purpose bearing in mind the basic principles set out in this article. Some organisations will also choose to have a volunteering policy that provides a framework for the volunteer programme and sets out the overall principles that will govern how the programme will run. Whilst such policies can be helpful, the same principles will apply as with a volunteer agreement and the language and tone of the policy will be very important. If you are in any doubt, you should seek legal advice.
Tozers Top Tips
- Have a volunteer agreement for every volunteer;
- Avoid using language usually associated with employee/worker status such as ‘job’, ‘employee’ or ‘work’;
- Use phrases of reasonable expectation rather than requirement, such as ‘it is expected that the volunteer will be able to work 2 days a week’ and not ‘the volunteer must work 2 days a week’;
- Include a specific clause stating that it is not intended to create a legally binding contract. While not conclusive, this can be very helpful;
- As far as possible give your volunteers the ability to refuse tasks and choose when to work;
- Do not pay your volunteers for holidays or sickness absence;
- Ensure your volunteers are only reimbursed for reasonable expenses actually incurred;
- Have clear procedures for dealing with problems and grievances in relation to volunteers – this should reduce the likelihood of a dispute in the first place.
For further advice contact our specialist employment team on 01392 207020 or e-mail email@example.com.