The number of UK based volunteers has increased dramatically, according to the National Council for Voluntary Organisations (NCVO). However, not adhering to specific terms and conditions in the appointment and management of volunteers could potentially be costly for businesses. Article by Tom Long, Legal Director – Shakespeare Martineau.
Despite the obvious benefits that using volunteers brings – a lower wage bill and a pool of talent from which to later employ, for example – it is vital to set certain conditions from the outset and constantly monitor that these are being stuck to. This begins with the initial ‘volunteer agreement’ that should be issued at the appointment stage. Whereas an ordinary contract of employment specifies various rights such as an entitlement to paid holiday, and rights will accrue to employees such as the right not to be unfairly dismissed, a volunteer agreement is less legalistic in nature. As none of these ordinary employment rights apply to voluntary workers, the document should simply outline the duties and working hours that are expected of them, any issues around supervision and health and safety and details of how the volunteer will be reimbursed for any expenses that may be incurred.
It is at this point that employers need to be careful. If anything more detailed than a simple volunteer agreement is put in place, then they risk creating a ‘Mutuality of Obligation’, where they become committed to providing work and the volunteer becomes committed to accept work. In such cases the volunteer may be deemed to be a worker or employee – giving them the right to be paid the national minimum wage, annual leave etc. It is also important to ensure that the duties laid out in the agreement are not exceeded by voluntary workers. If duties end up going beyond those set out in the volunteer agreement, claims that a voluntary worker is moving into the sphere of an employee or worker might be upheld. Finally, where voluntary workers are being reimbursed for expenses incurred, these should be strictly monitored to ensure they are only paid for genuine claims. Going beyond this could lead to claims that voluntary workers are being paid for their work (not just expenses) and therefore are workers and entitled, as a minimum, to the national minimum wage.
In terms of day-to-day human resources issues, managing the disciplinary and grievance process should be done more informally than for permanent members of staff, to avoid the implication that volunteers, if dealt with under existing procedures, are employees or workers. Where misconduct is concerned, it is best practice to directly discuss the matter with the individual to ensure they understand a similar incident should not occur again. If a voluntary worker has committed gross misconduct then the terms of their appointment simply allow an employer to dismiss them without notice. Where health and safety is concerned, however, the process for investigating accidents is identical to that used for workers and employees, the employer owing a similar duty of care. It is also important that employers check volunteers are covered by the terms of their employers liability insurance. Their inclusion means that any compensation paid out to, or caused by, a voluntary worker involved in a workplace accident would be covered by the terms of the policy.
Crucially, voluntary workers are not covered by the employment provision of the Equality Act. However, it would be best practice to ensure that equality and diversity considerations are applied in the recruitment and management of volunteers, it making no moral or reputational sense to rely on a technicality to justify discriminatory treatment.
It is possible that the pressure the National Living Wage is bringing to bear on businesses will lead to them considering using voluntary workers, perhaps for the first time. However, without recognising the need to manage their terms, conditions and day-to-day schedule in a specific way, there is a real risk that their legal status, and subsequently the obligation of the employer, will fundamentally alter and cost businesses more in the long term.
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