A number of charities have asked about whether it is possible for a "volunteer" to, in fact, be found to be an "employee" for legal purposes. The boards, committees and operations of many organisations often include a number of different types of people, including directors, advisers, trustees, employees, casual staff, consultants and volunteers. The distinction can often become blurred, thus it is important that it is understood.
Volunteers
Volunteers should not be capable of being viewed as employees provided that the day-to-day organisation of their work is clearly defined from the outset. A volunteer is, by definition, someone who freely gives up his or her time to assist an organisation for no payment. It is up to him whether he turns up to any work or training and how often he does so: to make the relationship any more than this blurs the lines.
Volunteers should not be treated in the same way as employees and they should not be subject to the same day-to-day policies as employees (eg grievance and disciplinary procedures). Where an organisation has a large number of volunteers it should adopt the following basic rules as a minimum:
- volunteers should not be paid for any work that they do, although an expenses policy can provide for expenses such as transport costs to be reimbursed;
- volunteers should wherever possible be clearly informed of their volunteer status in writing and also of the organisation's procedures in terms of CRB/ISA checks and data protection in particular;
- whilst they are not employees, volunteers by their nature represent the organisation and should be asked to follow a simple code of conduct. Wherever possible and, as a minimum, where any volunteer is involved in a public facing role, induction of any volunteers should include basic equality and diversity training;
- organisations need to have regard to their health and safety obligations in respect of volunteers and should ensure that up to date risk assessments are in place for any situations where a volunteer may be placed. They should also ensure that they are covered by any public liability or other insurance policies; and
- organisations should regularly review the group of volunteers and the work which they are undertaking to ensure ongoing clarity in terms of the relationships.
Whilst it is highly unlikely that volunteers could be found to be employees, if you keep to these basic rules it is important to understand that an organisation may be liable for acts of discrimination by any of its employees against any volunteer, for example, if an employee racially discriminated against a volunteer.
Insulating the organisation, by ensuring that staff are trained and understand equality and diversity obligations, is key (as is a complaints procedure). If any issue arises it should be dealt with as promptly and directly as possible. If a volunteer is the cause of any discriminatory issue, the code of conduct should be clear enough to allow the organisation to remove the volunteer.
Consultants and other relationships
Consultancy and other sub-contract type relationships are also common areas where mistakes are made. Such relationships should be considered carefully and advice sought if the organisation is not clear about its options or the potential risks.
Consultancy agreements are best used for specific project based work, e.g., IT installation or other one off tasks. An agreement with an individual, say, is only part of the jigsaw of relevant facts. For instance, where a "consultant:"
- just turns up to work day in, day out;
- uses the organisation's facilities and systems;
- could not send a substitute to do the work;
- has no other clients; or
- takes no real risk,
then it is likely that the consultant is in fact an employee. Getting the arrangement correct at the outset then is key.
Other relationships, whilst they are not likely to create any employment risk, can also create governance and other risks. What about those "advisers" that attend every board meeting and chip in with views on things that are not within their specialist area? They are likely to be in fact shadow trustees or directors.
Getting the "family" arrangement correct is something which every organisation can get right but many do not. The next time you sit in a meeting, it may be worth taking 30 seconds to think about all the people around the table and whether some clear lines need to be drawn for those people and the organisation as a whole going forward.