Does employment law apply to volunteers?

Many organisations host volunteers to undertake a range of responsibilities and to provide work experience. The types of organisations that can host volunteers includes charities, not for profits, public sector organisations and private sector enterprises. The activities volunteers engage in can also vary greatly depending on the industry. Nevertheless, volunteers and interns are all treated equally in terms of employment law.

Below we’ll be breaking down how volunteers are defined by law and what organisations need to be aware of when making use of their services.

What is a volunteer?

There is no single statutory definition of “volunteer” and “intern”.

A volunteer is a person engaged in an activity which involves spending time, unpaid (except for travel and other out of pocket expenses), doing something which aims to benefit some third party other than or in addition to a close relative.

Legal Status of Volunteers

The legal status of an individual is important as it determines the extent of any statutory employment rights that they have against the organisations to which they provide their services. There are (broadly) three categories of protected individuals under employment law: Employees, Workers, Individuals “in employment”.

The definition of “employment” includes employment under a contract of employment, a contract of apprenticeship or a contract personally to do work (section 83(2), EqA 2010), which encompasses both employees and workers, and a potentially wider category of individuals who are genuinely self-employed, provided that their contract obliges them to perform the work personally.

To establish protection under any of the three categories above (employee, worker or “in employment” status for the purposes of protection from discrimination), an individual must first establish that they have a contract with an organisation. This will require existence of the four basic elements of a contract:

Offer
Acceptance
Consideration
Intention to create legal relations.

The absence of a contract between an individual and an organisation will be fatal to a claim under the ERA 1996 or the EqA 2010.

Do volunteers count as employees?

As volunteers do not have a contract of employment, they do not experience the same rights as employees, workers or individuals in employment. This means volunteers are not legally protected from being unfairly or wrongfully dismissed or from discrimination in the workplace meaning they cannot bring such claims against their employer. However, organisations can be liable if a volunteer harasses or discriminates against an employee. Part 3 of the EqA 2010 deals with discrimination in the provision of goods, services and facilities. Although volunteers may not be protected from discrimination under the employment provisions (Part 5) of the EqA 2010, they might be able to claim that, by offering opportunities for volunteering or work experience, an organisation is providing a service and, consequently, they are protected from discrimination under Part 3 of the EqA 2010.

Instead of an employment contract, volunteers are often given a Volunteer Agreement. Although this document is not compulsory or legally binding, it helps organisations ensure individual volunteers act in the interest of the organisation. A volunteer agreement will explain:

The volunteer’s role.
The induction and training that will be provided.
The level of support and supervision given during the volunteer’s activities.
Whether or not the volunteer will be covered by the organisation employer’s liability insurance or public liability insurance.
Any health and safety issues associated with their activities.
Any expenses that will be covered by the organisation, eg travel.

Changes to employment status

Organisations must be careful to ensure their actions don’t cause volunteers to take on employment rights. If any payment or ‘benefits in kind’ is made to a volunteer, they will then be classed as a worker in the eyes of HMRC. In this case, they are entitled to receive at least the national minimum wage.

In this case, the promise of a future job due to volunteer work can be seen as sufficient benefit to qualify someone as a worker. HMRC defines volunteer guidance as:

That which is expected to be acquired through doing the volunteer work.
That which is given solely to improve someone’s ability to complete their volunteer duties.

Any training that’s provided beyond this scope can lead a volunteer to become a worker. These criteria can be subjective and highly changeable depending on the nature of the organisation, as well as the work the volunteer undertakes. As such, free employment law advice for employers can give you a strong knowledge base so you can outline your volunteer approach. We have lots of resources for employers on our website.

Set out below are some suggestions (derived from the case law) to reduce the risk for organisations of creating a legally binding contract with volunteers. It may not be realistic to avoid all the potential risk factors, but removing some of the indicators of a contractual relationship should be possible:

Avoid making payments to volunteers that could be construed as wages. Payments to cover actual expenses should be clearly identified as such and ideally reimbursed against receipts.
Remove or, at least, minimise perks that could be seen as consideration.
Reduce obligations on the part of the volunteer. Giving a volunteer the ability to refuse tasks and choose when to work will point away from the existence of a binding contract.
Avoid using language that makes the arrangement sound contractual and adopt flexible language, such as “usual” and “suggested”. See Standard document, Volunteer agreement for sample wording.
Treat volunteers fairly. Having clear procedures for dealing with problems and grievances and good communication between the parties should reduce the likelihood of disputes with volunteers.

Expert employment law advice for employers

If you’re looking for further guidance on employment law for volunteers, or advice on specific case scenarios, contact Employment Law Services (ELS) LTD today. We are a firm dedicated to supporting businesses and individuals in their working practices across the UK. Get peace of mind with comprehensive employment law help for employers and bespoke HR solutions. We have over 15 years’ experience, so we know what it takes to keep a workplace running smoothly and avoid any legal speed bumps along the way.