myerson-charities

Published May 2012

Volunteers frequently play a crucial role in helping charities function. However, charities need to take care to ensure that their relationships with volunteers do not become, by accident, contractual relationships.

If a worker or employee relationship is created then the individual will become entitled to certain rights, for example the minimum wage, paid annual leave, rest breaks and (for employees) protection from unfair dismissal.

Whether a contractual relationship exists essentially comes down to whether there is a legally binding contract between the organisation and the volunteer. Practically, to avoid this from occurring, organisations should:

  1. Avoid making payments to volunteers that could be viewed as being a wage. If an individual needs to be reimbursed for their expenses, then the payment needs to clearly be identified as being an expenses payment. These payments should generally only be made if an appropriate receipt has been submitted (which then needs to be retained in the organisation’s records);
  2. Avoid (or minimise) any perks that could potentially be interpreted as consideration for services;
  3. Provide the volunteer with the clear right to refuse tasks and when they work. This reduces their obligations and helps show that there is no binding contract;
  4. Avoid the use of contractual language in correspondence with the volunteer (for example, use terms such as “usually” or “we suggest”);
  5. Have clear procedures and policies in place for dealing with any problems or complaints. These should be distinct from those policies applying to the charity’s employees. This will help ensure that volunteers are treated fairly, and will reduce the potential for disputes arising; and
  6. Only provide uniforms and equipment for a volunteer to use if it is reasonable and required for them to be able to perform their role.

It is always sensible to consider whether it is appropriate to put in place a “Volunteer Agreement” to confirm the volunteer’s role, induction and training, any supervision, support, expenses, insurance and health and safety. Extreme care needs to be taken with drafting such documents to ensure that they cannot be interpreted as giving rise to a contractual relationship (see point 4 above!).

A further thing to consider when utilising volunteers is the Data Protection Act 1998. Organisations utilising volunteers will frequently have the same responsibilities toward their volunteers as employers have toward their employees. Consequently, any personal or sensitive personal data (for example their name, date of birth or address) must be processed by the organisation in accordance with the Data Protection Act 1998. The requirements of the Data Protection Act 1998 are complex, so advice should always be sought.

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