Are volunteers classed as employees? Do they need any contracts of employment, and what rights do they have?
Volunteers in the genuine sense have no employment rights. For example volunteers have been specifically stipulated as being one category of worker exempt from the provisions of the National Minimum Wage Act 1998. However, employment status is an extremely fluid notion and the lines drawn to separate the various classes of status are commonly blurred. An employer may consider an individual to be a volunteer when in reality they are not.
Similar to an agency worker, the atypical worker or independent contractors, employment status of a volunteer is ultimately concluded on the real contractual relationship – the work and behavioural conduct between employer and labourer. Therefore to avoid a tribunal from assigning employment or worker status to a volunteer, coming with these labels many legal rights and obligations, there are a number of principled guidelines that need to be complied with.
There is no decisive legal definition of whom or what a volunteer is. Therefore the onus is on the employer to ensure that the conduct and any documentation or policies issued in relation to a volunteer do not connote any evidence or reliance on an employee or worker relationship. Here are a number of things an employer should keep in mind whilst dealing with volunteers.
Put all intentions of the relationship expressly in writing in a voluntary agreement
Employers should provide volunteer arrangements in which it is expressly defined that there is no intention to create an employment relationship and that the agreement itself is certainly not a contract of employment. It must include that there are no obligations or requirements between both parties. Employers should also avoid the agreement looking like a formal contract by using words like ‘employer’ ‘required’ and ‘employee’ in order to safeguard against misrepresentation. Words like ‘hope’ ‘volunteer’ and ‘agreement’ should be used instead to reflect the substantial difference between an employee relationship and a volunteer relationship.
Differentiate between paid staff and volunteers where necessary
This does not mean that employers should treat volunteers less favourably than employees, but the different relationships should be made clear and kept separate. So, for example, volunteer agreements should not resemble contracts of employment and policies such as Equal Opportunities should be documented separately to that given to staff.
Do not ‘require’ from volunteers
Not only should an employer not require obligations or duties from a volunteer, and vice versa to avoid employment status being assigned, in reality employers cannot require obligations or duties from a volunteer because they are not bound by any contractual obligations. Instead they are associated in an objective-orientated mutual agreement. Therefore if an employer wants to highlight objectives and purposes of the relationship, they should do so in an indirect way. For example if an employer wishes a volunteer to stay with them for a lengthy period of time, they should express that they wish the volunteer to stay on, not stipulate or require them to fulfil a minimum hour week.
Therefore volunteers are not employees and have no employment rights; and a volunteer agreement is integral to specifying the special non-contractual relationship between an employer and a volunteer.
For any further information, please call our 24 Hour Advice Service on 0844 892 2772.
Volunteer Employment Rights
February 24 2012