Following on from my post last week about discrimination, I spotted this very interesting update from Sandy Adirondack, who is probably the most important voluntary sector legal consultant and trainer in the UK.
I am posting it here with Sandy’s permission and with my own strong recommendation that every volunteer manager should visit Sandy’s website and subscribe to her regular legal updates.
It is not accurate to say that discrimination legislation does not apply to volunteers. The legislation relating to discrimination in employment applies to employees, and to ‘workers’ as defined in discrimination legislation. Any person who is not an employee but is working under a contract – such as a casual – could be a ‘worker’ in this context. Contract in this context does not mean a piece of paper; it means a relationship in which there is an exchange of consideration – money or something else of value, given or promised in exchange for the work. A volunteer who is working under a contract and is expected to work regularly or a fixed number of hours could be legally an employee (and entitled to the full range of employment rights); a volunteer who is working under a contract but without having to work specified times or hours could be a worker (and entitled to the more limited rights that workers have, including minimum wage, paid holiday and protection under the discrimination legislation).
Where a volunteer receives only reimbursement for genuine out-of-pocket expenses and/or small thank-you’s (such as a party during Volunteers Week), a contract is unlikely to be created and if a volunteer were to claim s/he had been discriminated against, the legislation would probably be held not to apply.
Where a volunteer receives fixed rate ‘expenses’ which are not linked to actual expenditure – such as ‘£7 per day to cover expenses’, even if the volunteer incurs no expenditure or less than the amount – this is likely to be seen legally as payment in exchange for the work, creating a contract. If the volunteer receives a sessional fee, pocket money, honorarium or any other form of money, this is likely to be seen as payment in exchange for the work, creating a contract. If an employment tribunal says that a contract has been created, the so-called volunteer will be able to bring a claim of discrimination.
Where a volunteer receives a non-money benefit which is necessary for the work (such as relevant training, or protective clothing) this is unlikely to create a contract. Where a volunteer receives something which is not necessary for the work, an employment tribunal might or might say a contract has been created.
Quite apart from the discrimination issue, there are many other legal issues to consider when a volunteer receives money other than genuine reimbursement, or a non-money benefit that is not necessary for their work:
- If the organisation is a charity and the volunteers is on its management committee/board, the payment or benefit would be unlawful under
- the payment or benefit may be subject to tax, under either PAYE or self-assessment;
- in some situations it could be subject to national insurance;
- if the person is receiving state welfare benefits, these could be affected;
- if the person is an asylum seeker, it could be a breach of their immigration conditions.
For more about the issues around paying or providing ‘perks’ or benefits to volunteers, see chapter 39 in The Russell-Cooke Voluntary Sector Legal Handbook (the third edition of the Voluntary Sector Legal Handbook) – see details below. There is also information on the Volunteering England website.
For regular updates about legal changes affecting volunteering and voluntary organisations, see the legal update website for voluntary organisations at www.sandy-a.co.uk/legal.htm.