© thomson snell & passmore 2011 volunteers and the law a few thoughts james willis senior...

© Thomson Snell & Passmore 2011

Volunteers and the lawA few thoughts

James Willis

Senior Associate

[email protected]

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


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?


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)


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


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


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


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


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


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


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


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


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?


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


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


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?


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


Questions?

© thomson snell & passmore 2011 volunteers and the law a few thoughts james willis senior...

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