When will a volunteer be considered a worker?

Many businesses and charities have volunteers on staff to perform work for the business. Employers need to be careful however, that their volunteers do not gain worker or employee status, entitling them to the National Minimum Wage, paid annual leave, and other rights. This article explains volunteer status and some things employers can do to prevent their volunteers from becoming workers.

Volunteer Status

While there is no single statutory definition of volunteer, a volunteer may be understood as an individual who is unpaid and engages in an activity to benefit a third party other than a close relative. If a person is genuinely a volunteer there will be no mutuality of obligation between the parties, meaning they will not be required to perform work and your business will not be required to provide them with work. Volunteers are not entitled to be paid the minimum wage and do not benefit from many of the rights given to workers and employees, such as paid holiday or statutory sick pay.

However, employers should take care they do not inadvertently create a contract with the individual, which could give them worker or employee status. A tribunal may find that a contract exists if you provide remuneration to the individual or if you exercise a significant degree of control over them. 

Remuneration

Genuine volunteers should not receive, nor expect to be paid, any remuneration for their work. Some businesses may give small gifts to their volunteers as a token of appreciation for the individuals’ hard work. A genuine one-off gift of reasonable value, which the volunteer had not expected to receive, is unlikely to give the individual worker status. However, regular gifts or benefits in kind may indicate a contractual relationship whereby the individual performs work in exchange for a reward. The volunteer would then be a worker and entitled to the National Minimum Wage.

Many organisations reimburse expenses incurred by their volunteers. Reimbursing reasonable expenses the volunteer has incurred, and which are backed by receipts, is unlikely to create worker status. Paying expenses over and above what the volunteer has incurred or may reasonably incur, may confer worker status and entitle the individual to the National Minimum Wage. For example, in one case a volunteer was paid an expenses allowance of £25 per week regardless of whether she actually incurred expenses, and continued to receive the allowance when she was on holiday or off sick. A tribunal found that the £25 was payment for work, not reimbursement of expenses, and the individual was actually an employee.

Exercising control

Exerting significant control over the individual may also indicate a binding contract between you and the volunteer. You should therefore be as flexible as possible in your volunteer arrangements and minimise the obligations placed on them. For example, it would be advisable to set expectations, such as a “normal commitment” of a certain number of hours per week, rather than strict hours of when the volunteer must perform work. Volunteers should be relatively free to accept or deny work as they choose, without penalty.

Volunteer Agreements

You do not need to have written volunteer agreements between your business and your volunteers, but such agreements may help clarify expectations between the parties. If you are going to use a volunteer agreement, it must be drafted very carefully to ensure a binding contract is not created. The agreement should avoid language that indicates obligations such as “you must” or “you are required” and instead refer to what you expect to gain from the volunteer.

A volunteer agreement may include information about

• the volunteer’s role;
• training that will be provided;
• level of commitment that is usually expected;
• expenses;
• insurance; and
• health and safety.

You may include a statement in the agreement that it is not intended to be a binding contract, though such a statement will not be conclusive. If an individual does later claim to be a worker or employee, the question for the Employment Tribunal will be whether the agreement imposes a contractual obligation on you to provide work and on the individual to complete it. You may therefore wish to take advice before drafting a volunteer agreement.

If you engage volunteers at your organisation and have any queries, or if you would like assistance drafting a volunteer agreement, contact our Employment Team today by emailing employment@warnegoodman.co.uk or calling 023 8071 7717.