The legal status of volunteers

There is currently no legislation specifically covering volunteer workers. Neither is there any legal definition of what a voluntary worker is. Organisations have to be careful that the volunteers don't become employees in the eyes of the law.

Differentiate between volunteers and employees

Clearly, volunteers are an important part of voluntary organisations. They often provide a flexible, motivated work force far beyond the financial resources of the organisation.

But while it is natural for voluntary organisations to wish to treat valuable volunteers on equal terms to paid staff, this cannot apply to written agreements.

When the distinction between volunteer and employee becomes blurred, voluntary organisations can find themselves with legal problems.

In a number of recent claims, voluntary workers won the right to be considered as employees and brought a claim against their employers for both discrimination and unfair dismissal.

Put your intentions in writing

Some organisations avoid written documents totally for fear that they may inadvertently create legal obligations toward their volunteers. However, recent rulings have shown that tribunals tend to rule on behaviour rather than language. A pattern of behaviour can represent a contract, even if there's no written document.

It remains good practice to put your intentions into writing when it comes to volunteers:

Volunteer role descriptions and agreements can help both parties to clarify intentions and expectations, lowering the chance of a grievance arising in the first place.
On a practical level, a written agreement can help the organisation ensure that practice does not breech the law or drift into dangerous territory.

but don't create volunteer 'contracts'

While organisations will wish to have detailed, formal contracts for paid staff, it is actually safer to avoid them when it comes to volunteers. They can lead to false expectations of obligation on both sides.

For this reason, you must avoid setting out the volunteer relationship in terms of rights and obligations. Instead, express your goals as intentions, hopes, or policies. This reflects the voluntary nature of the arrangement.

This means you cannot offer training with the provision that the volunteer must work a minimum amount of hours for the organisation. Nor can you promise to provide recompense such as training or a job offer for the volunteer in return for his or her time.

Checklist

Steer clear of words with a contractual connotation. Instead of words like 'contract', 'pay', 'employee', and 'employer', use words such as 'volunteer', 'intention' and 'relationship'.
Safeguard against misinterpretation by including the following sentence: 'This agreement reflects the hopes and intentions of the volunteer and the charity, and is not contractually binding in any way on either party.'
Differentiate between paid staff and volunteers. This does not mean you should not treat volunteers as fairly as employees. Organisations may wish to have an equal opportunities policy for volunteers, but this should be a separate document from any equal opportunities policy for staff.
Remember you cannot 'require' anything of your volunteers. They cannot be bound by contractual obligations without being considered employees by employment tribunals. For example, if you think it would be best that volunteers remain with you for a certain period of time, you should phrase it such that it is not a demand, but only a hope 'that the volunteer have a long, pleasant stay' with your organisation. Such statements should be reflected in your working practice. Flexibility should be shown toward volunteers who fail to fulfil their expectations.

Further information

Volunteering England provide information about legal status of volunteers as well as major types of liability.
Directory of Social Change have published the useful article Legal Eyes: Volunteers and the law – an update.

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