One of the trickier volunteering issues has long been the unclear boundary where volunteers can become workers or employees in the eyes of the law. Such a change in status can bring volunteers under the protection of the equal opportunities and employment legislation.
The problem for organisations is that the main guidelines on when this occurs are decisions made at employment tribunal. These have been few and sometimes inconsistent. The situation has now been made clearer by an Employment Appeal Tribunal decision, South East Sheffield Citizen’s Advice Bureau v Grayson [2004] IRLR 353.
Unlike most tribunal decisions on this issue, brought by volunteers, the case was brought by a paid member of staff seeking to show that the Bureau’s volunteers could be regarded as in employment, bringing the number of employees in the organisation above the small employer exemption of the Disability Discrimination Act 1995 (DDA). The exemption will be scrapped on October 1 2004.
The original tribunal decision
The original Employment Tribunal decision found that the relationship between the CAB and its volunteers was contractual, and fitted the DDA’s definition of employment.
Section 68(1) of the Act defines ‘employment’ as
‘…subject to any prescribed provision, employment under a contract of service or of apprenticeship or a contract personally to do any work, related expressions are to be construed accordingly’
In summary, the tribunal’s decision was reached on the basis that:
‘…there was an intention that work would be done by the advisers in return for the payment of expenses incurred and the provision of training, the opportunity to gain experience and the acceptance of legal liability on the part of the Bureau for any errors which they may commit in the course of the work done.’
It also pointed to the existence of disciplinary and grievance procedures, equal opportunities and health and safety policies and provision for supervision as being consistent with employment.
The Employment Appeal Tribunal’s findings
The case was appealed in November 2003. The Employment Appeal Tribunal (EAT) not only overturned the decision, but also set out what amounts to a robust defence of the concept of volunteering as a distinct, freely entered into relationship held by the majority of volunteer involving organisations.
What follows are some key conclusions reached by the Employment Appeal Tribunal, referred to in the text as the EAT. Any time I’ve used the phrase ‘the tribunal’ I’m referring to the original Employment Tribunal. It should of course be noted that this is not a statement of law - the full decision is well worth reading. See below for details.
Volunteer agreements
The EAT felt that the tribunal was wrong in ruling that the lack of an explicit statement in the CAB’s volunteer agreement that it was not intended to create legal relations was of importance. On the contrary, the fact that it was not signed, and its stated intention ‘..to clarify the reasonable expectations of both the volunteer and the Bureau’ would suggest that it was not intended to be legally binding. As the EAT points out, few employees would find their relationship with their employer defined as reasonable expectations.
Expectations are not obligations
The tribunal had pointed to a minimum commitment of 6 hours per week as a contractual element in the relationship. The EAT felt that as expressed – a ‘usual minimum commitment’ – it was simply outlining an expectation. The volunteers were not told they had to work those hours, nor was there any sanction on them if they did not. The EAT noted that the Bureau relied on volunteers and that therefore it was not unreasonable for it to set out such guidelines.
Further to this, the volunteers were not paid for the hours they do put in.
Expenses and ‘if contracts’
The reimbursement of expenses was regarded as significant by the tribunal, but this was dismissed by the EAT, which felt that it would be surprising if organisations left unpaid volunteers out of pocket.
The EAT was however prepared to accept that the agreement to reimburse expenses did amount to a contract. At first glance this conclusion may be confusing, but it’s important to remember that in terms of employment status the issue is not whether there s a contract per se, but whether there is a contract of service (what we’d normally think of as employment, with full employment rights) or, in the case of the equal opportunities legislation, National Minimum Wage Act and Working Time Directive, a contract for services (a wider category of worker encompassing casual workers etc).
The EAT felt that there may be a unilateral contract – an ‘if’ contract – in the agreement to reimburse expenses and insure volunteers against negligence claims, which it expressed as:
‘if you do any work for the Bureau and incur expenses in doing so, and/or suffer a claim from a client you advise, the Bureau will indemnify you against your expenses and any such claim’
This may be a contract, but a contract on this issue only – crucially it does not obligate the volunteer to do any work for the Bureau.
No obligation to provide or carry out work
The tribunal had concluded that the ‘usual minimum commitment’ of 6 hours committed volunteers to work, and in return as a consideration (a payment element of a contract) the Bureau would provide training, supervision, experience, expenses and insurance cover, benefits that would be removed if a volunteer didn’t provide the Bureau with work.
The EAT considered the tribunal’s reasoning to be flawed, with such benefits not having been shown to be linked to a reciprocal relationship, and a dubious interpretation of what could be seen as a consideration.
The key issue for the EAT was whether or not the volunteer agreement imposed a contractual obligation on the Bureau to provide work, or the volunteer to carry it out:
‘Like many similar charitable organisations, similarly dependent on the services of volunteers, the Bureau provides training for its volunteers and expects of them in return a commitment to work for it, but the work expected of them is expressed to be voluntary, it is in fact unpaid and all that the Volunteer Agreement purports to do is to set out the Bureau’s expectations of its volunteers’
A volunteer for the Bureau would be able to leave at any point, without the Bureau having recourse to action for breach of contract.
The EAT concluded that the Bureau’s volunteers did not fall into the DDA’s definition of employment.
Implications for volunteer involving organisations
Future tribunals will have to take the case into account. The case concerned the DDA, but the principles discussed will apply more generally to cases where the employment status of ‘volunteers’ is being judged.
The EAT regarded the reimbursement of expenses, necessary training, and a written agreement that covered grievance and disciplinary procedures, confidentiality clauses and a request for as much notice as possible if a volunteer was going to leave the Bureau as reasonable components of a volunteer relationship that did not amount to a contract to provide services. Some of these elements have in the past been regarded as potentially problematic.
However it should be remembered that the judgement was based on a specific set of circumstances.
Not all volunteer agreements or working practices will now be ‘safe’. Future employment tribunals will look at the unique circumstances before them, and if they feel the ‘volunteer’ relationship is clearly contractual they will still be free to make that judgement.
The EAT decision does not mean that from now on it’s ok to require a minimum time commitment. In this case the commitment was felt to be a ‘reasonable expectation’, and there were no sanctions in place for when the 6 hours weren’t met.
It does not mean that it is now ok to provide any sort of benefit to volunteers. The volunteers in this case received ‘benefits’ that were reasonable in the circumstances and not analogous to any sort of payment in return for work.
Further information
The Employment Appeal Tribunal’s decision can be read in full at: http://www.employmentappeals.gov.uk/
Public/Upload/UKEAT2830317112003.doc
For further information on this and related issues contact Volunteering England’s Information Team – information@volunteeringengland.org
Volunteering England Information line: 0800 028 3304 (M-F, 9.30-5.30).
