When does a volunteer become an employee?

Many churches rely on volunteers to help deliver their mandates, however they risk inadvertently creating an employer/employee situation.

The outline below is a guide to circumstances when we may fall into this trap;

• Where we provide volunteers the rights to leave, maternity conditions or payment of the national minimum wage.

• When we give letter engaging volunteers mirroring a typical contract of employment

• Sanctioning volunteers by asking them to repay cost of training for non-attendance

• Where volunteer is promised or made to understand services could lead to paid employment

• Where payment, gift or reward is made to volunteer; payments beyond volunteer’s expenses such as prize for best worker, volunteer, etc

• Having a flat rate for all volunteers irrespective of actual expense incurred

• Any form of regular payment apart from expense incurred as a volunteer

• Holding volunteers to the same accountability as staff

• Where training offered is not linked to the role that the person is carrying out as a volunteer

If a volunteer receives any type of reward or payment other than expenses, they may see this as a salary and they could be classed as an employee or worker. This then gives them some employment rights.

Examples

Example 1 ¨ Bro John volunteers at the church office to get some work experience. He is given travel expenses even though he walks to work. This is a payment, rather than out-of-pocket expenses, so he must be paid at least the minimum wage.

Example 2 ¨ Mary volunteers for a charity organisation. All volunteers get £3 a week for travel but Mary is responsible for a park close to her home, so she walks there. This means the £3 is a payment and not a reimbursement of expenses. It could count as a contract of employment meaning Mary could be eligible for the minimum wage.

Example 3 ¨ Joe is an unpaid intern at the church office, but he’s given free CD's of the Pastors message as a perk. The CD's are ‘benefits in kind’. This means he must be paid at least the minimum wage.

Example 4 ¨ Amanda is an unpaid intern. She’s been promised that she’ll be taken on as an employee after 3 months. This counts as a reward, so she must be paid at least the minimum wage for the whole time she spends at the organisation.

Finally, in an attempt not to offer workers full employment rights, some charities classify such volunteers as Voluntary Worker. There is no such this as a voluntary worker. If the person is a worker, the charity could be asked to pay back up to 6 years back pay

Q&A: Charities, volunteers and the law – Culled from The Guardian Newspaper

1. Do charities need to have formal agreements with volunteers?

No. Although you are legally required to have a document for employees setting out the terms of their employment, there is no such obligation for volunteers.

If you do want to have volunteers’ agreement in place, then you need to make sure that it does not place any obligation on the volunteer to carry out their volunteering activities. It should talk about your hopes and expectations rather than any specific requirements you are placing upon the volunteer.

The key point is that you do not employ volunteers and should therefore avoid using employment jargon such as termination, disciplinary, grievance etc.

2. Should volunteers be treated on a par with our employees?

It's not about fairness, but two different models of working – one of which is about defined obligations to perform services for money, and the other about giving something to a charity for free.

If you treat volunteers in the same way as employees, then you run the risk they will be viewed by employment tribunals as employees in the event of any dispute.

One of the legal implications of this could be having to pay them the minimum wage.

3. How should charities deal with volunteer disciplinary and grievance problems?

Not at all. It just means you should use procedures that are specific to volunteers. You might have a procedure for dealing with concerns by and about volunteers where issues will be addressed by the volunteer co-ordinator (or equivalent).

However, bear in mind that you should not, for instance, say to volunteers that not turning up for a scheduled duty will lead to action being taken under your internal procedures as you should not be putting volunteers under an obligation to attend for work.

Of course, if a volunteer repeatedly fails to show up you may decide not to offer them further duties, to terminate the volunteering arrangement.

4. Are charities allowed to pay volunteers anything?

No. As soon as you start to give them any money, or any other benefits with a tangible value, you run the risk that the relationship becomes contractual, rather than voluntary.

What sort of benefits? Anything that is not directly linked to a volunteer's ability to carry out their duties. For instance, training that is not relevant to their volunteering role, such as first-aid training for a volunteer who has no first-aid responsibilities, or making free or subsidised childcare available to them at times when they are not volunteering. However, small tokens of appreciation such as badges or medals are unlikely to be a problem.

5. Could a volunteer sue a charity for unfair dismissal?

Not if you are working within the guidelines above and you are not paying them or providing anything of value for their services. They will not be employees in these circumstances and will not be able to bring a claim for unfair dismissal. But can charities pay their expenses? Yes, this is fine, as long as it is actually out-of-pocket expenses, preferably supported by receipts, or a reasonable pre-estimate of expenses that will actually be incurred.

It would be acceptable, for example, to offer to pay a volunteer £5 for lunch on a day when they were volunteering if they were going to have to buy it at a local café. However, this level of expenses would not be reasonable if you had a subsidised canteen where lunch costs £2.50, or to pay it to a volunteer every day, regardless of whether they attended for volunteering duties over the lunch period.

6. Does volunteering affect someone's ability to claim benefits?

No, it should not, although it will be essential that a volunteer only receives actual out-of-pocket expenses, and not a reasonable pre-estimate, unless the volunteer pays back any surplus money after the expense has been incurred.

7. What about volunteers bringing claims for discrimination?

Again, if you have followed these guidelines this should not be a problem. Your volunteers will not be in a formal legal relationship with you and so will not be employees within the wider meaning of discrimination legislation

One area that sometimes causes difficulties, however, is when charities use volunteering as a precursor to an individual applying for paid employment. Employers have an obligation not to discriminate in the arrangements that they make for determining to whom they will offer paid employment. If someone's performance as a volunteer is a factor in the decision about whether you offer them a job, there may well be a valid argument that the protection from discrimination on grounds of sex, race, disability, religion, sexual orientation and age applies during the volunteering work.

In such a case, the charity should take note of its obligation to make reasonable adjustments to accommodate individuals with disabilities.

8. What are charities' legal responsibilities towards our volunteers?

Aside from the duty not to discriminate as highlighted above, your duties are mainly to do with health and safety – making sure that the workplace is safe, and that activities do not pose an unacceptable level of risk.

You should also keep in mind your duties as a data controller and only process personal data about a volunteer lawfully.

This includes only processing sensitive personal data about them – e.g. racial or ethnic origins, religious or similar beliefs, physical or mental health or trade union membership – with their express consent.

9. Should Volunteers be Insured?

Yes, you should definitely make sure that your insurers are aware that you have volunteers working for you so that you are covered both for any claims that may be brought if a volunteer should become injured and for any claims that could be brought against you because of the actions of a volunteer (for instance, if a volunteer adviser gave negligent advice).