Volunteers and the Law: Next steps Mark Restall

markrestall.wordpress.com “On 9 October the Department for Work and Pensions announced that meal expenses and so on would not affect benefits, and so recipients could work towards re- entering the job market without fear of being penalised. Today, the Minister has repeated what the Department for Work and Pensions said two years ago. Therefore, the question is: why on earth has it taken two years for a lesson that one department learnt to be taught to another?” (Baroness Wilcox)‏

markrestall.wordpress.com Health and Safety Compensation Act 2006 A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might— (a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or (b) discourage persons from undertaking functions in connection with a desirable activity.

markrestall.wordpress.com Volunteers as employees? The issue: It is possible for some volunteers to claim the status of workers or employees The consequences: Some/all employment rights – minimum wage, anti-discrimination

markrestall.wordpress.com How? Employment relationship based on a contract: consideration – something of value exchanged intention – arrangement intended to be binding? Contract for services – definition applying to National Minimum Wage Act, anti-discrimination legislation Contract of service – definition in Employment Rights Act 1996 – full employment rights

markrestall.wordpress.com Volunteers found to be employed Maria Delourdes Armitage v Relate & others 1994 – 600 hours of counselling or repay the cost – possibility of paid work, and a minimum number of hours counselling per week. Migrant Advisory Service v Mrs K Chaudri - £25-40 per week. Employment contract like an elephant (you know one when you see one)‏ Murray vs Newham CAB – training, support and reimbursement of expenses, strict minimum time commitments, range of procedures, eg for claiming holiday

markrestall.wordpress.com Clarity South East Sheffield CAB v Grayson 2004 Volunteers not working under contract – Volunteer agreement based on 'reasonable expectations' Genuine expenses and training to carry out role not 'consideration' Melhuish v Redbridge CAB 2004 Bruce v Dial House Chester 2004

markrestall.wordpress.com Independent Safeguarding Authority New vetting and barring scheme Compulsory Constantly updatable Could speed things up In place from 12 October 2009 More info -

markrestall.wordpress.com How it will work volunteer not within the system CRB check – enhanced level ISA decide Does check reveal anything? Person ISA registered YesNo Barred Volunteer who is ISA registered ISA online check CRB check where desired or a legal obligation

markrestall.wordpress.com Who must be checked? Regulated Activity Any activity of a specified nature that involves contact with children or vulnerable adults frequently, intensively and/or overnight. (Such activities include teaching, training, care, supervision, advice, treatment and transportation.)‏ Any activity allowing contact with children or vulnerable adults that is in a specified place frequently or intensively. (Such places include schools and care homes.)‏ Fostering and childcare. Any activity that involves people in certain defined positions of responsibility. (Such positions include school governor, director of social services and trustee of certain charities.)‏ ‘Regulated activity’ is when the activity is frequent (once a month or more) or ‘intensive’ (takes place on three or more days in a 30-day period).

markrestall.wordpress.com Who must be checked? Controlled Activities Frequent or intensive support work in general health settings, the NHS and further education. (Such work includes cleaners, caretakers, shop workers, catering staff, car park attendants and receptionists.)‏ Individuals working for specified organisations (e.g. a local authority (Does not apply to voluntary organisations other than those regulated under the Care Standards Act - MR)) who have frequent access to sensitive records about children and vulnerable adults. Support work in adult social care settings. (Such jobs include day centre cleaners and those with access to social care records.)‏

markrestall.wordpress.com Employment and Support Allowance Replaces Incapacity Benefit and Income Support paid on grounds of disability Welfare Reform Act 2007 Employment and Support Allowance Regulations 2008 (No. 794)‏ Work Capacity Assessment Starts 27 October 2008 for new claimants

markrestall.wordpress.com Employment and Support Allowance Regulations 2008 (No. 794)‏ Exempt work (Section 45) – work that does not affect entitlement (6) Work done where the claimant receives no payment of earnings and where the claimant— (a) is engaged by a charity or voluntary organisation; or (b) is a volunteer, where the Secretary of State is satisfied in any of those cases that it is reasonable for the claimant to provide the service free of charge “volunteer” means a person who is engaged in voluntary work otherwise than for a relative, where the only payment received or due to be paid to the person by virtue of being so engaged is in respect of any expenses reasonably incurred by the person in connection with that work.

markrestall.wordpress.com Where next? Legal definition of volunteering? Clarity on what is volunteering and what isn't? Remove the ban on volunteering by people on visitor visas Official recognition of volunteering as legitimate JSA activity?