WELCOME TO

Volunteers and the Law23rd June 2010

Trainer: Jacqui Wolstenholme

Why is training like a sandwich?

You have the meat (or vegetarian equivalent) in the middle

Objectives of today’s programme

To have knowledge of key areas of the law that affect volunteering

To offer ways of working which increases confidence in dealing with legal issues and Volunteers

Disclaimer

May contain traces of nuts…….

Legal Issues that affect all volunteers

Health and Safety

Data Protection

Copyright

Employment Rights

Health and Safety

Much H&S legislation applies only to paid workers but, the Health & Safety At Work (etc) Act 1974, imposes a duty on every employer:

“to ensure, as far as reasonably practical, that persons not in their employment, who may be affected by their undertaking, are not exposed to risks to their health and safety” and “to give information as might affect their health or safety” = VOLUNTEERS

There are legal consequences for organisations/trustees if volunteers are exposed to serious risks AND a moral duty – not justifiable to treat volunteers worse than paid staff

A H&S policy is the foundation on which to develop relevant procedures and practices. An organisation must have one if have more than 5 employees but it is also good practice to write one and include it in induction of volunteers.

Health, Safety and Welfare

Employers must provide safe place to work which is clean and free from risks, to reduce the chance of ill health or injury

Safe systems or working are required i.e. proper procedures for handling dangerous substances, adequate guards for machinery

Employers should provide adequate supervision Employees must be given training and information

to give them sufficient skills and knowledge to carry out their work safelyAll the above can apply to volunteers to ensure volunteers can also work in safe and risk free

environment

Premises, substances, fires, first aid

Non domestic premises e.g. community buildings, village halls (incl. attached car parks/play areas) obliged to keep premises and equipment safe. This includes safe exit routes and minimum standards to reduce fire risk.

Written fire risk assessment needed for all orgs with more than 6 employees

Duty to assess risks caused by hazardous substances e.g. bleach and small children

Voluntary groups with no staff are not bound to do first aid assessment but is good practice. Exceptions would include e.g. fireworks display, charity run etc

Health and Safety in practice

Ensure: That volunteers are adequately trained and

provided with relevant information That volunteers are adequately supported and

supervised That your health and safety policy

encompasses and is communicated to volunteers

Your insurance cover includes volunteers

Risk Assessment

Management of Health and Safety at Work Regulations 1999 place duty on employers to carry out risk assessments

Looking at potential risks to their employees and others, including volunteers

Involves identifying all hazards, assessing the risks and putting in place measures to control unacceptable risks

Needs detailed knowledge of organisations activities therefore needs to involve people doing the work e.g. volunteers

What are the risks?

Health – this can be caused by faulty equipment, working with hazardous substances, working in surroundings that are unsafe, poor training and not being aware of risk

Personal Safety – caused by dangerous situations and not being prepared, aware or trained

Emotional Distress – caused by dealings with aggressive clients, difficult situations (working with elderly or vulnerable youngsters, terminally ill) and not having adequate training/support

Personal Integrity – working in situations that could expose the volunteers to misunderstandings or accusations. Not having adequate training to raise their awareness of this possibility or dealing with it effectively.

Reducing Risk

Risk cannot be avoided entirely but measures can be put in place to reduce risk. The actual method of assessing is not laid down in legislation. However the Health and Safety Executive(HSE) recommends a 5-step approach to the process:

1. Look for the hazards2. Decide who might be harmed3. Evaluate the chance and decide if precautions are

adequate4. Record the findings5. Review your assessment from time to time

Data Protection

Organisations utilising volunteers may need to store personal informationabout them. Any organisation storing personal information must ensurethey comply with the data protection act otherwise they could leavethemselves open to prosecution

8 data protection principles - personal information on volunteers must be:

Processed only for specified and lawful purposes Fairly and lawfully processed Adequate, relevant and not excessive Accurate and up to date Not kept longer than necessary for purpose specified Processed in accordance with the rights of the data subject Secure from the point of collection through to disposal Not transferred to countries without adequate protection of data subjects

Retention Periods

Contact/personal details, induction, training, supervision records - until volunteer leaves organisation

Expenses records – 3 years CRB disclosures – 6 months, or if relevant until next

Commission for Social Care Inspection Organisations regulated under CSCI should seek further advice on retention periods

Accidents – 3 years (personal injury claims) Advice Organisations - should be aware of the Limitations Act

imposes a 6 year limit for damages claim other than personal injury. Training records may be needed.

Copyright

Volunteers keep copyright on the material they produce unless they assign it to the organisation

This could include leaflets, designs, articles, photographs, websites, artwork…..

Copyright can be assigned, either for a token sum or as a deed – an enforceable legal document

Licences can be granted for limited use

Employment Rights and Volunteers

Whilst volunteers aren’t covered by employment legislation, it can be possible for some volunteers to be seen as workers or employees in the eyes of the law. The key issue is whether or not there is a contract in place: A contract does not have to be a written document or even a verbal agreement it is a description of a relationship

Consideration - money or something of value (training for example) + intention (was there an intention to create a binding

agreement?)

If a contract is created between an organisation and its volunteers, it is likely to be one that changes the legal status of volunteers to that of workers or employees

Worker, employee, volunteer?

Worker someone who carries out work while under a contract for someone else but not

continuous service (e.g. casual workers) are covered by the anti-discrimination legislation, the national minimum wage

act and the working time directiveEmployee an individual who has entered into or works under a contract of employment

And which can be determined by “criteria tests” Control test –Is the person subject to rules and procedures? Mutuality of obligation test – obligation to both provide/do work

Has additional rights: not to be unfairly dismissed, to sick pay, to belong to a trade union etc

Volunteer There is no legal definition of the word ‘volunteer’. However, the definition

of volunteering used in the ‘2005 Compact Code of Good Volunteering Practice’ is "an activity that involves spending time, unpaid, doing something which aims to benefit the environment or individuals or groups other than or in addition to close relatives".

Tribunal Decisions

It is hard to be precise when describing whether a volunteers will be regarded as workers or employees. Decide how these cases were considered:

Maria DeLourdes Armitage v Relate & others

MIGRANT Advisory Service v Mrs K Chaudri

Gradwell v CVS, Blakpool, Wyre and Fylde

Murray v Newham Citizens Advice Bureau

Tribunal Outcomes

Maria DeLourdes Armitage v Relate & others (1994) -Mutual obligations and expectation of paid work were enough to create contract of employment

MIGRANT Advisory Service v Mrs K Chaudri (1998) – Payments in return for regular hours of work were a contract of employment

Gradwell v CVS, Blackpool, Wyre and Fylde (1997) – A contract had not been created

Murray v Newham Citizens Advice Bureau (2000) – Here the appeals tribunal (EAT) looked at the entire relationship and as a whole were considered enough to create a contract of employment.

Reducing Risk again

Avoid giving volunteers an income Reduce perks that could be seen as consideration -

(reimbursement of expenses and reasonable training are not considerations)

Don’t make the relationship sound contractual -Volunteer agreements, policies and procedures are not in themselves signs of a contract

Create a distinction between paid workers and volunteers Reduce obligations on the part of the volunteer -

Reasonable expectations are not contractual obligations Treat volunteers fairly – Put Good Practice in place

Legal Issues that can affect some Volunteers

Benefits / Tax

Working with Vulnerable Clients – safeguarding and screening

Benefit Rules

All major benefits allow the claimant to volunteer No hour limits, but must be unpaid – out of pocket

expenses only Jobseekers Allowance – actively seeking, available

for work 48 hours notice for job interview, one week to start work

Incapacity benefit – volunteering is an exempt category of work. No restrictions, but distinguish it from paid work

Volunteers responsibility to inform Job Centres about volunteering

Expenses, Benefits and Tax

Reimburse out of pocket expenses only – ‘sessional payments’, ‘pocket money’ etc are all taxable, affect benefits, and could change the legal status of the volunteers.

Travel to / from voluntary work Travel while volunteering Meals while volunteering Post / phone calls Care of dependents Cost of protective clothing, special equipment etc Collect receipts, bus tickets etc Use claim forms

Working with vulnerable clients

Section 115 (4) (a) of the Police Act 1997 describes vulnerable people as:

Anyone under the age of 18 Anyone receiving:

– Accommodation and nursing or personal care in a care home– Personal care in their own home through a domiciliary care

agency– Healthcare services provided by an independent hospital,

independent clinic, independent medical agency or NHS body– Services provided in an establishment catering for a person

with learning difficulties Anyone who could be described as having:

– A substantial learning of physical disability– A physical or mental illness, chronic or otherwise, including

an addiction to alcohol or drugs– A substantial reduction in physical or mental capacity

Duty of care

Organisations with vulnerable clients have an enhanced duty of care. Theyshould have a clear child/vulnerable people policy in place, which should be reflected throughout volunteer involvement.

Typical measures might be:

Taking up references Through training and induction Looking at working practices –to avoid unnecessary risk Adequate supervision Having proper channels for clients, volunteers and staff to raise concerns Actively seeking feedback from clients. From October 2009 new laws were also introduced to help preventunsuitable people from undertaking paid or volunteer work with children orvulnerable adults. The scheme is called Vetting and Barring and is implementedby the Independent Safeguarding Authority (ISA)

The Home Secretary, Theresa May, issued

a statement on 15thJune 2010 to

the House of Commons which confirms the

stated intention of the coalition Government

to review the Vetting & Barring and Criminal

Record regimes to ensure that they are

scaled back to common sense levels

Stop Press!!!!!! Vetting and Barring Scheme registration halted!

So what has happened so far?

From 12 October 2009, new laws were made to help prevent unsuitable people from undertaking paid or volunteer work with children or vulnerable adults: It is a criminal offence for barred individuals to apply to work with children or vulnerable adults. Employers face criminal sanctions for knowingly employing a barred individual.

The three previous barring lists (POVA, POCA and List 99) were replaced by the creation of two new barred lists: the Adults List and the Childrens’ List. Since October, checks of these two lists have been made as part of an Enhanced CRB check

It was determined that (in relation to vulnerable groups) activities should be regulated and controlled

What will happen now?

It will remain that : It is a criminal offence for barred individuals to apply to work

with children or vulnerable adults.

Employers face criminal sanctions for knowingly employing a barred individual.

Employers, local authorities, professional regulators and inspection bodies have a duty to refer to the ISA any information on an individual working with the vulnerable where they consider them to have caused harm or pose a risk.

In addition: Additional jobs and voluntary positions are covered by the

barring arrangements, including moderators of children's internet chat rooms, and a large number of NHS staff

How do the changes effect CRB applications?

New joint ISA/CRB forms due out on 26th July will still go ahead. However, applications for ISA ONLY registration will be rejected.

New forms will be accepted for CRB checks from 28th June but not processed until 26th July

Applications on current CRB forms will be accepted until 20th July 2010 (16th if by telephone)

Guidelines will be issued on how to complete the new forms (omitting the ISA sections)

The cost for an Enhanced CRB check will be £36 and £26 for a standard CRB check. CHECKS ON VOLUNTEERS ARE FREE! (plus any additional handling fee charged by your umbrella body)

More information: www.isa-gov.org.uk or www.crb.homeoffice.gov.uk

And finally…. Good Practice

Although not legal requirements the following are a recommended as good practice when involving volunteers in your organisation:

Volunteer Policy -the foundation on which your organisation’s involvement of volunteers should be based

Volunteer Agreement - is a document that can act as a reference point for the volunteers, and a reminder to the organisation that it should meet the standards of good practice that it has set itself

Thank you and goodbye Hope you enjoyed the

For more information on involving volunteers in your organisation contact

your local CVS:

West Devon CVS

01837 53392

www.westdevoncvs.org.uk