in 2007, sport organisations asked Volunteering England's then Head of Information, Mark Restall, about sport specific issues with volunteers and the law.
Mark Restall recently published "Volunteers and the Law" and has completed a sell-out tour of workshops based on the book.
Please note that none of the information below is a substitute for professional legal advice. Mark has given his opinion on issues, and a suggestion of where organisations would stand in the circumstances described, but note that he is not a lawyer and has no legal training. Mark has highlighted potential problems that may need exploration with a trained lawyer.
1. Does paying our coaches mean they are not volunteers?
2. Can you tell us what insurance is necessary for our volunteers?
3. What is the legal status of our paid leaders?
4. What about national minimum wage?
5. If a volunteer has been receiving a “flat rate” for their time with our club, would they be seen to have a legal contract, and rights that go with that?
6. How advisable is it for different rates of ‘expenses’ for volunteers undertaking different ‘official’ roles?
7. Is the situation complicated in cases where a mileage allowance is reimbursed on top of the ‘recommended’ flat rate?
8. Can you point me in the direction of any minumum wage and volunteers case studies?
9. Is it acceptable to 'cap' the rate of expenses reimbursed to a volunteer eg offer 25p a mile for the first 100 miles only, thereby limiting the expenses to a total of £25.00?
10. As a national governing body of sport, we do not directly pay referees, but we do recommend event organisers on payment levels. Could this lead to legal difficulties for us or our event organisers?
For further frequently asked questions about volunteering visit our website.
1. My questions are around our sport leaders involved in helping with the Mini game as well as other activities. On the one hand, the leaders are assisting professional coaches in lessons and competitions for which the players or parents pay a fee. The coach is paid and in many cases around the country the leader gets paid also. Occasionally a club arranges that a leader gets free lessons in return for his/her assistance. Mostly they get paid anything from £3 to £5 per hour. This begs the question whether they are indeed volunteers?
When we launch our Leaders Programme in September our leaders will be able to log all their leader hours on our leader website and will get recognised for certain milestones of hours. As a sport we will not concern ourselves with whether or not they are paid. However we would want to link with Step into Sport and recommend that the same leaders join the Step into Sport programme and recognise the same hours for that. Will the fact that they are paid be a problem and therefore would we have to say that only those who are actually volunteering can register for Step into Sport?
The definition of volunteering that Volunteering England uses comes from the Compact Code on Volunteering. A central element of this is that the activity is unpaid. Most of the volunteering sector in this country works to this, or at least very similar definitions.
This isn’t necessarily important in itself, but the consequences of paying ‘volunteers’ can affect both volunteers and the organisation.
In this case the money the volunteers receive will be seen as income by the jobcentre, which means that volunteers could face losing some of their means tested benefits, and would be treated as if they are in paid work. The money would also be taxable.
On top of this, it’s also likely that the volunteers would be seen as employed in some fashion in the eyes of the law. This means that volunteers could have access to some or all employment rights. This would include entitlement to the minimum wage (the rates mentioned are less than this). This is a complicated issue – further information is in Volunteers and the Law (available from Volunteering England, or can be obtained from calling the VE information line.
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2. This question is around insurance. All of our clubs have comprehensive insurance which does cover Leader activity and courses. Leader courses in schools will be covered under school insurance. Other than that however I do not know how leaders will be covered. I saw from a recent SLUK [Sports Leaders UK] letter explaining that they are thinking of setting up a membership scheme which will offer members insurance. This implies that it is indeed necessary. Can you help on this one as well?
I would need more context for a detailed answer on this one, I have not seen the letter from Sports Leaders UK. If this is referring to leaders operating outside of you clubs or schools then any other club or institution involving leaders would need to arrange insurance to cover themselves and the leader.
3. The organising body (National Governing Body of sport, Event or Show Organiser) says it is up to the individual to negotiate his or her own flat rate and to sort out Tax and NI. This implies that the organising body assumes that the individual is self-employed for the purposes of this arrangement. What could happen if the individual doesn’t declare the income? What could be the comeback upon both event organisers and the NGB/Organising body?
I’m by no means an expert on tax, but I can’t see that this meets the Revenues and Customs definition of self employment. Further to that, if they consider the volunteers to be employed then it’s possible that they’d believe PAYE should be introduced.
If volunteers don’t declare income they could get in trouble in the same way anyone else does. If the organisation was felt to be an employer and didn’t investigate what its duties were then there could be problems for them too – I’d suggest calling the local tax office, or better still stop the flat rates. As well as being taxable they represent income to the jobcentre, and could change the legal status of the volunteers, allowing entitlement to the minimum wage, and access to other employment rights.
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4. If a flat rate is paid to sports "volunteers" but the total amount, if divided by hours worked, falls under the National Minimum Wage (again suggesting the self-employed scenario) what situations might result? How legally enforceable might the NMW be under these circumstances and who might be liable for prosecution/fine, if anyone? I understand from the Inland Revenue that Acas (Advisory, Conciliation and Arbitration Service) would deal with complaints of individuals working for under the NMW.
I don’t think the self employment situation is relevant (eg, volunteers can’t subcontract their work out).
If there is felt to be a contract in place that meets the definition of employment in the NMW Act then the volunteers are entitled to the NMW. I doubt that any enforcement of the NMW would lead to a fine, simply to an order to pay the minimum wage (and importantly backdate payments as far back as 1999 if a volunteer has been there that long). Fines are likely to come in if it’s felt that there has been a deliberate attempt to breach the act.
The likeliest scenario around volunteering is that a volunteer could call the NMW helpline, leading to an inspection. I believe a volunteer could also take a legal case through a solicitor. It’s also possible (albeit unlikely) that a minimum wage inspector could independently come across the practice, as they do have a proactive remit.
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5. If an individual ‘volunteered’ at an event and was paid a ‘flat-rate’ would they be regarded in law as a casual worker? (By which I understand that no expectation of a contractual agreement is formed on either side). What if, however, the individual was a) to assist the same event several times in one year or b) to assist the same event on, say, three consecutive years, having been paid for at least part of this time, and were then subsequently ‘dropped’ by the event/show organiser? Might the ‘volunteer’ have grounds for arguing that a contractual agreement was implied by previous actions?
On the first point, being paid a flat rate is likely to make a person a ‘worker’ is the eyes of the law. This is a broad definition of employment used by the NMW act and the anti-discrimination legislation. Technically they are working under a contract to personally provide services. The term worker is often used to distinguish the status from ‘employees’, who have full employment rights.
With workers there is a contract in place around the work, but there is not the ongoing obligation to provide/carry out work that there is for employees. Casual workers are often cited as an example of this status.
Although workers have protection from discrimination, they have no protection from unfair dismissal, so they can simply be ‘dropped’ – however matters may be complicated if there was a clear intention to offer a certain amount of work to them, and I wouldn’t like to venture anything further on this - I would suggest seeking legal advice.
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6. How ethical/advisable is it for a NGB/Member Body etc to recommend different rates of ‘expenses’ for volunteers undertaking different ‘official’ roles?
Again, we always strongly advise against flat rates for all the reasons given above. Different rates of ‘expenses’ simply compounds the fact that it’s income in return for work rather than a genuine reimbursement of expenses – not to mention the fact that it’s likely to be divisive among volunteers.
7. Is the situation complicated in cases where a mileage allowance is reimbursed on top of the ‘recommended’ flat rate?
Not really – it doesn’t make things worse, it just leaves them in an already bad situation.
8. Can you point me in the direction of any minimum wage and volunteers case studies?
I have personally dealt with one organisation where minimum wage inspectors were called in by a volunteer. The volunteers received £5-6 per day to cover expenses. The inspectors decided this amounted to employment, and ordered that all 120 volunteers be paid the minimum wage. They finally came to an accommodation whereby a portion of the volunteers were taken on as paid workers and the rest of the original volunteers were moved over to genuine reimbursement of expenses. There’s no guarantee that the next organisation will get off so lightly. I’ve heard rumours of similar cases, but for obvious reasons organisations don’t want word to get out.
On top of this the payment of flat rates excludes people on benefits – or gets them into difficulty if they do get involved. Flat rate payments to trustees could also breach charity law.
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9. Is it acceptable to 'cap' the rate of expenses reimbursed to a volunteer eg offer 25p a mile for the first 100 miles only, thereby limiting the expenses to a total of £25.00?
That’s fine as long as it’s still clear that the sum is a contribution towards genuine expenses. You’d still need to keep records to show that this was the case, and, for example, pedestrians weren’t receiving it.
And finally, a question from another sports organisation:
10. As a national governing body of sport, we do not directly pay referees alhtough we do tell event organisers that they have to pay them for each race they officiate at. We have a document on our website with recommended (and we stress 'recommended') payment levels depending on the level of event. I'm worried that this either puts us in a vulnerable position should anything happen to the referee (as they are all our members, and represent the NGB) or (perhaps and?) puts the event organiser in a similar position as they are paying them in the end. Any advice on this would be most welcome!
The Volunteering England Information team does not have formal legal training to know who exactly the employer would be seen to be here, it would depend on the independence of the events. You say the referees would be representing the National Governing Body, which suggests that they are in effect ‘volunteering’ for you and therefore (I’d assume, and this is purely an assumption) the NGB may be the employer.
Even if the events are totally separate, there’s the possibility of the events organisers suing the NGB for losses if they are caught for minimum wage etc… after following your advice.
Bear in mind too that employers have all sorts of duties that they need to follow. Overall, I’d suggest if you do have access to proper legal advice get a qualified opinion on this.
For further information visit our Volunteers and the Law web pages.
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