The charity sector is employer to large numbers of people in the UK, the vast majority of whom are entitled to benefit from the reasonably comprehensive employment rights that UK legislation provides.

However, charities are also dependant on volunteers to ensure their survival and it will often be assumed that because such people are "volunteers", they have no employment rights. This is not true. Charities should be aware of the various employment issues which relate to their volunteers.

Why is it important for me to distinguish between my volunteers and my employees?

The UK now offers employees (as opposed to volunteers) considerable protection by way of its employment legislation. For example, there is now a national minimum wage and right to paid holiday. In addition, there is an entitlement to maternity and sick pay and to notice. Employees also have the right to complain to an Employment Tribunal of unfair dismissal, sex, race or disability discrimination. A host of other protective measures also exist. These rights are costly to employers so the need to distinguish between employees and volunteers is vital.

Surely if I call my volunteers, "volunteers", that will be sufficient to prove they are not employees?

Sadly, no! A common misconception when considering the status of volunteers arises from their "labelling". It is often assumed that because somebody is called a volunteer, that is what they are. However this is not the case. In determining whether a person is an employee as opposed to a volunteer, Employment Tribunals, which hear the large majority of employment related claims, will consider the following:-

(i) whether mutual obligations exist between the parties i.e. is there an obligation on the "volunteer" to attend work and a comparable obligation on the employer to provide something in exchange.

(ii) whether there is a contract between the parties. The Tribunal will consider the nature of any contract between the parties (and remember the contract need not be in writing). Merely describing the person as a "volunteer" in the contract will not be sufficient, if the reality is otherwise.

(iii) whether there is consideration between the parties, e.g. salary in return for work. One of the key areas which a Tribunal will consider in determining whether a volunteer is, in reality, an employee is how expenses are reimbursed.

Is there anything I can put in writing for my genuine volunteers that might help or should I steer clear of anything formal?

In order to minimise potential liability under employment legislation, it is a good idea to have a "volunteer agreement" in place between the volunteer and the charity. Whilst it is sensible to have this in writing to clarify the position, it is important that this is carefully worded to avoid it being viewed by an Employment Tribunal as a contract of employment. Our Employment Unit can advise you further on this.

I've heard of the national minimum wage. Does it apply to our volunteers?

A genuine volunteer will not qualify for the national minimum wage provided that no monetary payment is received other than the reimbursement of genuine expenses.

We often have volunteers coming to help us from abroad, is this acceptable under UK immigration laws?

Visitors to the UK are not normally entitled to work during their stay and this includes voluntary work. However, the Home Office may allow people to come to the UK for voluntary work for a maximum of 12 months. When applying for entry clearance, the volunteer will have to prove to the Home Office what work they are coming to do. They must be working for a charitable organisation and receive no remuneration other than "pocket money", board and accommodation. The work these volunteers do must relate closely to the aims of the charity and they may not do clerical, administrative, or maintenance work.

And finally................

It is important to remember that of the thousands of people who volunteer their time to charities, only a few have successfully brought claims demonstrating that they are employees. It is clear that if a charity develops a good management practice for its volunteers, there is little cause for concern. The emphasis should be on reducing the risks and ensuring at the outset that both the charity's and the volunteer's expectations of the relationship are the same.