Scotland has around 1.2 million charity volunteers, over a quarter of the population. But while essential to the operations of charities large and small, volunteers can also be a risk factor.
This is because the line between paid employees and volunteers can easily become blurred, either at the start of, or during a volunteering relationship. When this happens, charities make themselves vulnerable to claims for backdated national minimum wage, holiday pay, unfair dismissal, statutory sick pay, statutory maternity pay and redundancy payments, among other costs.
The danger areas
Most charities think they are clear on the difference between their volunteers and their employees: volunteers do not have employment contracts and they do not get paid.
This is correct, but on both counts the rules may be less clear-cut than you think. Charities may be putting themselves at risk – often in a well-intentioned attempt to reward or develop their volunteers.
First, an employment contract does not have to be written down to constitute a contract, so volunteers do not have to have anything in writing to claim employees’ or workers’ rights.
Second, charities that are too generous or relaxed about offering volunteers expenses may be deemed to be paying them. Training can also be seen as a benefit in kind if it does not relate to the volunteer’s current role.
The free will issue
Volunteers help charities out of their own free will. Questions about their status can therefore arise when charities require them to do tasks, imply there will be consequences if they fail to do them, or talk about ‘duties’ or ‘job descriptions’.
All of these can put you at risk of creating an unwritten employment contract. In all conversations and written documents, charities should therefore try to use language around ‘hopes’ and ‘expectations’ rather than ‘obligations’.
Expenses or payments
To avoid ‘expenses’ becoming ‘payments’, reimburse only genuine expenses. For example, if you routinely give £5 or £10 for travel to a volunteer who lives just round the corner, this could be seen as payment.
The same principle applies with expenses for food and drink or equipment: ask volunteers to produce receipts for their actual expenditure and only pay reasonable amounts for that actual expenditure.
Equally, if you offer ‘thank you’ gifts to your volunteers, avoid giving them the same gift at regular intervals. If the volunteer later claims to be an employee, these expenses payments or gifts could well be viewed as a payment in kind or ‘wages’.
Volunteer agreements
An effective way to maximise clarity over volunteer status is to have a written volunteer agreement (note the use of the word ‘agreement’ rather than ‘contract’).
- Set out what you hope for or expect from your volunteers – for example, in terms of time commitments and behaviour - rather than what you require
- Be clear on your procedures for claiming and paying expenses
- Use the agreement across your whole organisation, to avoid individual managers introducing their own expenses arrangements or talking about volunteers’ ‘requirements’.
Other elements for your volunteer agreements
In addition to basic hopes, expectations and expenses, there are other aspects worth reflecting in your volunteer agreements, such as your charity’s obligations towards volunteers. These too can protect against legal, administrative or reputational risks:
- Data protection: your volunteers are ‘data subjects’ for the purposes of the GDPR and the Data Protection Act 2018. With the Information Commissioner’s Office (ICO) enforcing GDPR more rigorously after its first year, it is important to know and follow your obligations here.
- Health and safety: you have health and safety obligations to anyone affected by your operations, and this includes volunteers as well as employees, workers, customers, service users and others.
- Intellectual property: if you have volunteers helping out with creative services (such as communications or app development), they could have rights in any IP created. You may need to take steps to assign these rights.
- Vetting arrangements: if your volunteers work with children or vulnerable adults, they should go through appropriate vetting processes.
- Resolving problems: Processes to be followed if a volunteer wants to raise an issue or complaint, or if the charity has concerns about the volunteer’s behaviour or actions.
Don’t let any of this scare you into regarding volunteers as threats or potential litigants.
Your volunteer agreement makes sure both you and your volunteers understand what’s expected and therefore can protect against risk, but you don’t need to view it as a defensive weapon.
Rather, it’s a way to manage your resources more efficiently. It’s better for everyone if there is clarity around what your volunteers do – or don’t do.