Volunteer workers are an indispensable resource for most charities. We sometimes receive requests for information as to the rights and responsibilities which co-exist between volunteers and charities. This note can be no more than general guidance:-
1. An occupier of land (for example where a charity occupies premises to pursue it’s objective) owes a duty to all “visitors” to ensure that the visitor will be “reasonably” safe in using the premises for the purposes for which they were invited on to the property. It is important therefore:-
- To undertake a risk assessment as to the safety of your premises. We recommend that you consider engaging a specialist Health & Safety Consultant.
- To notify your buildings and public liability insurers of the purpose for which you use your premises and comply with any requirements that they impose.
2. Contracts of Employment are characterised by obligations upon an employer (amongst other things) to pay wages and provide work and upon a worker to provide labour. On the fact of it a volunteer will not fall into this category and will not therefore be entitled to the additional protection against, for example, dismissal, discrimination, etc. Each case is looked at by the court on its own facts and there is at least one reported incident of a “volunteer” bringing a successful claim for sex discrimination having satisfied a Tribunal that a contractual situation existed in their case. The volunteer was entitled to receive allowances/benefits and the domination purpose of the relationship was the provision of labour. It is therefore important:-
- To review regularly the arrangements with each volunteer – especially those who provide regular work or who receive any “benefits” (financial allowances, opportunities to train etc).
- To record arrangements with regular volunteers in a written format for clarity. Ensure that you have appropriate policies in place to provide equal opportunities (race, sex, age, etc) in relation to for example any training opportunities.
- To talk in terms of “expectations” rather than “requirements”.
3. An organisation may be liable for the wrongful acts of individuals carried out on its behalf. This is known as “vicarious liability”. An example may occur where a volunteer in your organisation causes injury to an innocent third party whilst driving a motor car in the furtherance of charity objectives. The injured party may seek to bring proceedings against the driver and your charity. In order for vicarious liability to arise there must usually be a contractual relationship between yourself and your volunteer – but beware possible attempts to “create” such a relationship – as set out at paragraph 2 above. In any event a contractual relationship is not necessary where the volunteer’s misdemeanour has involved dishonesty – in which case the charity may be liable if it would have appeared to the third party dealing with you and your volunteer had the authority to undertake the act in question – for example, volunteers you authorise to collect money. We suggest:-
That your volunteers are properly trained in responsibilities such as health and safety.
That adequate insurance arrangements are in place – have those who undertake driving duties on your behalf made this clear to their insurers?
That your volunteers are aware what they may – and may not – do on behalf of your organisation and that you record this in writing. We are able to assist in preparing “volunteers agreements”.
That you create simple systems to monitor money handling and monitor them carefully. Ensure that any individual responsible for monitoring this is themselves subject to supervision.
That in appropriate cases you consider the need for fidelity insurance.
4. Consider who may bind your charity to contractual commitments. An unincorporated association (in other words for example a charitable trust) is not a legal entity in its own right – it may not sue or be sued itself but may only do so through its representatives e.g. Trustees. A volunteer who enters into a contract purportedly on behalf of a charity may therefore face a personal liability. Alternatively, if the volunteer had either the express, or even the apparent, authority of the charity to enter the contract then the Trustees of the charity may face personal liability.
In the event that your charity takes the form of a limited company it may be sued in relation to any contracts entered on its behalf by those who had the express or apparent authority to do so. The identity of those who have the capacity to bind the company to a contract is often set out within the company’s constitution (Memorandum and Articles of Association). It is important to consider who may bind your charity to a contract – remember that even buying a pint of milk or paying for car parking will amount to a contract! You may wish to make it clear that volunteers should not enter contracts for more than a specified sum without prior written authority. You may wish to make this know to those with whom you deal regularly and to make it clear in the terms of your agreement with the volunteer.
5. Welfare Benefits In circumstances where an individual is claiming state benefits their entitlement may be affected if they undertake voluntary work for a charity. This is too large a subject to cover in detail and any individual who may possible by affected should seek advice either from the Benefits Agency or their local Citizen’s Advice Bureau. Certain benefits (such as Incapacity Benefit) are non means tested. In these circumstances some work may be permissible providing that strict criteria are fulfilled. Other benefits are means tested (for example Job Seeker’s Allowance) and the volunteer may need to demonstrate that they are available for and actively seeking employment. In these circumstances undertaking approved voluntary work may still be permissible where the volunteer can demonstrate that they will learn new skills which will assist in the search for paid employment. The benefit enquiry line may be able to help 0800 243 355.
6. Immigration It is a criminal offence to employ someone who does not have the necessary authorisation from the Immigration and Nationality Department. Individuals from outside the European Economic Area are not permitted to undertake voluntary work in the UK. The Home Office operates a concession which permits volunteers to undertake work for charities in the U.K. providing that stringent conditions are met. They include that the work is voluntary (and unpaid save for reasonable expenses), that the volunteer will not need recourse to public funds to live, that they will leave the U.K. at the end of the visit. The volunteer must do direct “hands on” assistance (e.g. helping the elderly) and must not take up a position which would normally be offered as a paid position to a resident worker. Seek specific advice and clearance from the Immigration and Nationality Department in each case.