© Thomson Snell & Passmore 2011 Volunteers and the law A few thoughts James Willis Senior Associate D: March 2011

Tuesday, 25 August What are we going to cover? Why is volunteering an issue right now? Which rights apply to whom? Employees, workers and volunteers – what is the difference? Health and safety and insurance National minimum wage and expenses Internships A real life case study – X v Mid Sussex CAB And what about religious discrimination? Action points

Tuesday, 25 August Why is volunteering an issue right now? The ‘Big Society’ initiative The coalition government is encouraging local people to run local services Other government initiatives (e.g. internships) The economic climate People are looking to improve their CVs People are looking to gain valuable experience X v Mid Sussex CAB One for the lawyers?

Tuesday, 25 August Employees, workers and volunteers – which rights apply to whom? Employees have considerable rights: Protection from unfair dismissal Protection from discrimination National minimum wage Paid holiday and time off And many more… Workers also have important rights: Protection from discrimination National minimum wage Paid holiday and time off True volunteers have very few rights (if any)

Tuesday, 25 August What is an employee? Someone who works under a contract of employment This means looking for… Control The master-servant relationship What, where, when, how etc An obligation on the person to provide work personally Mutuality of obligation “I agree to undertake work; you agree to provide me with work and pay me for it.” Other factors Integration Consideration Intention to create legal relations

Tuesday, 25 August What is a worker? A person who: works under a contract of employment or any other contract where they undertake to perform services personally; and who is not in business on their own account Other factors: Consideration Intention to create legal relations

Tuesday, 25 August What is a volunteer? Someone who gives their time to help an organisation or an individual without pay True volunteers should be neither employees nor workers There should be no legally binding agreement There should be no obligation on the volunteer to undertake work and no obligation on the organisation to provide it

Tuesday, 25 August Health and safety and insurance Even volunteers are owed a duty of care by the organisation with which they work Organisations must take all reasonable steps to reduce the likelihood of harm Written risk assessments are a good idea Insurance – make sure that you are covered

Tuesday, 25 August National minimum wage and expenses A genuine volunteer will not be entitled to the national minimum wage Consider the terms of the volunteer agreement carefully What about expenses? Out of pocket expenses only – avoid flat rate arrangements

Tuesday, 25 August Internships The Government is encouraging internships (eg Graduate Talent Pool initiative) If it’s good enough for MPs? A good way of providing people with valuable work experience The “employer” may find a person that they want to keep

Tuesday, 25 August Internships (continued) Interns are likely to be employees/workers if: they are doing a real job (not just work-shadowing) they are contributing to the business they have a list of duties they have set hours To minimise the risks, you need to ensure… no formal agreement no obligation to work no expectation of being paid Consider the CIPD Code of Practice

Tuesday, 25 August X v Mid Sussex CAB – a real life case study The facts: X volunteered to work for the Mid Sussex Citizens Advice Bureau Volunteer agreement said it was “binding in honour only…and not a contract of employment or legally binding” X was under no obligation to work and often failed to attend The CAB did not object to this The CAB asked X to cease her volunteer work X brought claims of disability discrimination

Tuesday, 25 August X v Mid Sussex CAB – a real life case study (continued) The case went all the way up to the Court of Appeal The Court of Appeal ruled that:- volunteers are not covered by the Disability Discrimination Act 1998 far from obvious that it is desirable for volunteers to be covered by discrimination legislation had the law been intended to cover volunteers, it would have said so no reason to suppose that the law is intended to cover unpaid work This decision suggests that a similar outcome is likely, whatever form of discrimination a volunteer claims But watch out for an appeal to the Supreme Court?

Tuesday, 25 August And religious discrimination? Masih v AWAZ FM Limited The facts: Reverend Masih was a Christian Minister He co-presented a radio show for a community radio station His engagement was terminated after 6 years, following complaints arising out of a controversial “on air” phone in discussion He brought a claim of religious discrimination

Tuesday, 25 August Masih v AWAZ FM Limited The Employment Tribunal found that: Masih was not protected He was not working under a contract of service or apprenticeship He was not contracted to do work personally Therefore there was no enforceable contract But the ET was persuaded to refer the case to the European Court of Justice Will this case go any further? We don’t know quite yet

Tuesday, 25 August What if volunteers are covered by the Equality Act 2010 What if having (or not having) a particular protected characteristic is an “Occupational Requirement”? Is the “employment” for the purposes of an organised religion? Does the “employee” need to be of particular sex, sexuality, marital status in order to avoid conflicting with strongly held religious convictions? Likely to cover only limited post (minister of religion, small number of lay posts) Example: catholic priest must be male and unmarried Does the “employer” have a religious ethos? Does the “employee” need to be of that religious belief? Again, likely to have very limited scope Example: a catholic school may require its Principal to be catholic. But what about the cleaners?

Tuesday, 25 August Action points Review your volunteer agreements Avoid creating obligations of any sort ‘Hopes’ and ‘expectations’ at most Review your volunteer work outline (job description) Treat volunteers in line with Equal Opps policies as much as possible Review your expenses policies Check risk assessments and insurance arrangements

Tuesday, 25 August Questions?