New updated member content: Volunteering and the Law

The Department for Digital, Culture, Media and Sport have published the outcome of their independent review into full-time social action. Thank you to all the organisations that contributed evidence.

For the foreseeable future, there will be no new legal category for full-time volunteers. This may come as welcome news, considering the complexity surrounding the statuses that already exist, their implications and whether they are fit for purpose for your organisation. In this blog post I will outline three types of status – employees/workers, volunteers, and voluntary workers – and explain why you need to know the difference.

If you are worried about muddying the waters or confused about what makes a real volunteering opportunity, NCVO, together with the support of Bates Wells Braithwaite, has released updated guidance on volunteers and the law – free for NCVO members. We are grateful to Lucy McLynn, Partner, Head of Employment at BWB and her team of legal advisors who reviewed and updated this content.

Employees and workers

Broadly speaking, employees and workers both fulfil duties under contract and are entitled to:

• the national minimum wage
• protection from unlawful discrimination.

Employees and workers share these basic commonalities, although there are some differences between the two.

Employees have additional rights to workers, such as not to be unfairly dismissed, and they can receive redundancy payments. It’s important to note that there are also different types of workers. You can find out more from ACAS.

Volunteers

Volunteers are entirely different to employees and workers. This is the NCVO definition of volunteering:

‘…any activity that involves spending time, unpaid, doing something that aims to benefit the environment or someone (individuals or groups) other than, or in addition to, close relatives.’

Unlike an employee or worker, a volunteer:

• does not give their time or skills under contract
• is unpaid
• is not entitled to protection from employment law.

For further clarity about the status of volunteers, please read this blog.

Voluntary workers

A voluntary worker is a subset of a worker and is defined by the Home Office here. These are some of the ways in which voluntary worker status compares to that of a volunteer or a worker:

• Someone who works under contract (same as a worker, different to a volunteer)
• Can be offered non-monetary subsistence (eg food, accommodation) and/or training, equipment, etc in order to carry out duties (same as a volunteer)
• Does not qualify for the national minimum wage (different to a worker, same as a volunteer)
• Is not entitled to protections from employment law (same as a volunteer)

The key difference between a volunteer and a voluntary worker is that a voluntary worker performs duties under a contract. A contract means mutuality of obligation – the organisation has an obligation to provide the work and the person has an obligation to perform the work. Contracts can be implied and/or created verbally; they do not need to be written down.

What this means for you

We think that there are a considerable number of organisations, including public sector agencies, that engage voluntary workers as part of their people power.  How many of you create verbal contracts by specifically obliging others, for example regarding duration of commitment required, start times or how you manage ‘volunteers’? We would like to hear from you as we think that there are far more voluntary workers out there than we pay mind to and we want to help think through the implications of this.

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