Awareness of legal liability has increased in three main areas. The following interpretations are accurate at time of publication, but it is recommended that organisations take advice on liability if there is any uncertainty.
Negligence
Negligence occurs when a person who has a duty of care towards another person does not take reasonable care, and the other person suffers injury, loss or damage as a result. For example, occupiers of land have a duty to take reasonable care to ensure that premises are safe for visitors, and even have a duty of care to trespassers. Negligence may occur in various aspects of a voluntary organisation’s work, for example an injury caused by sports that are not properly supervised or where proper equipment is not provided, loss suffered as a result of inaccurate benefits advice, or theft of a client’s property because the organisation did not have proper security systems.
Duty of care is a fluid concept which can vary with the situation, the people involved, and the community in which the incident takes place. The court decides how it is interpreted in a particular case. The UK Compensation Bill (which at the time of writing has not yet become law) states that the wider social value of an activity is a factor which the courts can take into account when deciding what an organisation should have done to guard against a risk arising.
Vicarious liability
Vicarious liability is an employer’s indirect legal responsibility for negligent acts of its employees. An organisation (or the members of the organisation’s management committee if the organisation is not incorporated) may be found liable for the actions or inactions of its agents or subordinates even when it has neither authorised nor ratified them.
In the UK, the employer has generally been held to be vicariously liable only for the negligent acts of employees. However, there could also be vicarious liability for the acts of volunteers if the volunteer was held by the court to be legally an employee, or if the court felt that the relationship between the organisation and the volunteer was sufficient to justify a liability being imposed. Even if the organisation is not vicariously liable, it might be possible for a claim to be brought against the organisation for its own liability in, for example, not properly training or supervising the volunteer.
In the US and Canada, legal precedents have established that unpaid workers can be viewed as agents and therefore an organisation can be held vicariously liable for the wrongful acts of a volunteer, even when it has fulfilled its duty of care. A benchmark Canadian case in 1999, Bazley v. Curry, found an organisation vicariously liable for the sexual misconduct of a volunteer because the ‘employer’s enterprise created and fostered the risk that led to the ultimate harm (and) created and managed the risk’.
The legal status of volunteers
In the UK, the legal status of volunteers has raised particular concerns chiefly because it is unclear and has a host of ramifications for volunteers’ rights and organisations’ responsibilities and liability. Precedents have been set in claims for unfair dismissal or discrimination brought by volunteers against organisations including RNLI, the Scout Association, Relate and CAB.
Volunteering England, NCVO and the Association of Chief Executives of Voluntary Organisations warn that organisations should be careful that the volunteers don’t become employees in the eyes of the law and should not create arrangements that could be construed as a contract, including making payments to volunteers unless these are genuine reimbursement for out-of-pocket expenses. A ‘contract’ can exist even if there is no written agreement between the volunteer and the organisation (for more information see Volunteers and the Law, Restall M, 2005, published by Volunteering England).
