When is a volunteer not a volunteer?

A volunteer is a person who engages in an activity in which they spend time doing something which aims to benefit a third party without payment.

Volunteers are essential to many charities and their communities, which depend upon the time and skill provided to carry out their charitable activities. Charities can, however, get themselves into difficulty when engaging volunteers if they are unaware of rights which can apply under certain circumstances.

Legal status

The legal status of a volunteer determines the extent of any rights they have against the organisation to which they provide their services.  The rights of volunteers differ depending on whether they are an employee or a worker and whether there is a contractual arrangement between the parties.

The legal status of volunteers is not clear cut as there are a vast range of different types of arrangement.  This makes it difficult for organisations to know what legal obligations, if any, they may owe to them.  The obligations that could be owed to volunteers are those such as paying the national minimum wage, not discriminating against them and providing holiday and sick pay.

There have been several reported cases in relation to this over the past few years.

In the case of Murray v Newham Citizens Advice Bureau, the Employment Appeal Tribunal (‘the EAT’) found Mr Murray, a volunteer, to have been employed under a contract of employment.  Mr Murray was subject to a Volunteer Agreement under which he agreed to volunteer at specific times and for a minimum period and the Citizens Advice Bureau agreed to repay his expenses and provide him with basic training.

In the case of Migrant Advisory Service v Chaudri, the EAT found Mrs Chaudri to be an employee.  She did administrative work with the Migrant Advisory Service for two years and claimed unfair dismissal and sex discrimination when her voluntary role was terminated.  She worked four mornings per week and was paid volunteer’s expenses of a set sum per week, event though she incurred no expenses.  She was also paid when on holiday or sick.  The EAT found that the payment was for work and upheld a tribunal’s decision that Mrs Chaudri was an employee and therefore entitled to pursue her claims for unfair dismissal and discrimination.

Reducing the risk

There are ways in which organisations can reduce the risk of owing legal obligations to volunteers:

  • Reduce the risk of disputes arising by treating volunteers fairly. Communicate with them well and have written procedures for dealing with problems.
  • Avoid making payments to volunteers that could be construed as wages. Payments for expenses should be for those that are genuinely incurred and clearly identifiable.
  • Remove perks that could be seen as consideration for the existence of a contract.
  • Reduce obligations on volunteers by enabling them to refuse tasks and choose when they work.
  • Have a written agreement in place with the volunteer but avoid using language which sounds contractual, adopting flexible language instead.