Key legal issues for Volunteer Managers

Mark Restall

This article is an introduction to some key legal topics, with some practical suggestions of steps to take to help avoid running into problems.

It is not exhaustive, even on the subjects it covers, and shouldn’t be viewed as a statement of law.   For a fuller picture please see the book length Volunteers and the Law, available as a free download from www.volunteering.org.uk/law

1.          Firstly, there is little to be afraid of.  Anything legal can be off-putting, and it is true that the position of volunteers is less clear and less well known than that of employees.  However volunteer managers do not need to be legal experts to get a decent grasp of the issues.

There are places to turn to for further help and information.  Local Volunteer Centres and Volunteering England are there to turn to for support.  Volunteers and the Law will also help as a reference book.

2.          Organisations have a ‘duty of care’ towards their volunteers.  This legal duty means that they must take all reasonable steps open to them to avoid volunteers coming to harm.  Failure to do so could lead to organisations being found liable for negligence.

The clearest way to show this duty is being met is through carrying out risk assessments.  The Health and Safety Executive set out five steps for risk assessments:

1.     Identify the hazards (ie, how might people get hurt?)

2.     Decide who might be harmed and how

3.     Evaluate the risks and decide on precaution

4.     Record your findings and implement them

5.     Review your assessment and update if necessary

3.          Volunteers are not protected from discrimination or unfair dismissal – This is because the relevant legislation applies to people who meet the legal definitions of employment – with rare exceptions (see below) this does not include volunteers.  Volunteers must therefore rely on organisations to treat them fairly.

One way to look on this is to see the volunteering world as one great mutual fund based on effort rather than money.  We all rely on each other, as it’s not just a disgruntled individual who is unlikely to volunteer anywhere else – it’s their friends and family too.  Sometimes this is unavoidable, but it makes sense to deal with problems fairly and consistently.  Ensure that volunteers feel they can raise issues informally at any stage, and have procedures in place to deal with serious issues.

The Equality Act 2010 does make organisations responsible for the actions of their ‘agents’, as well as ‘agents’ potentially being held liable for discrimination. As volunteers are acting under their organisation’s instructions. Care must be taken to ensure that volunteers are acting in accordance with equal opportunities policies. Induction, training and ongoing supervision should emphasise the expectation on volunteers not to discriminate against service users, along with appropriate guidance.

4.       The data protection act applies to information held on volunteers. If you’re doing anything with information on identifiable volunteers that you’re keeping in some form of retrievable filing system, you must follow the ‘data protection principles’ within the Act.  In particular:

Do volunteers know what you are doing with their information?  You usually don’t need explicit consent, as generally your purposes are implicit – using the details on an application form to help with the selection process for example.  Where volunteers are no likely to expect a particular use of their information, or where sensitive information such as ethnicity, sexuality or health information is collected, explicit consent should be sought.

Is the information kept securely? Only those who need to have access to the information should do.  It should be kept in a lockable filing cabinet or behind a password if on computer.

5.       You are not allowed to CRB check any volunteer who walks through the door. Only certain roles are eligible for checks.  Trying to obtain a disclosure on someone who will not be in such a role is in breach of the CRB code of practice, not to mention the Police Act 1997, Rehabilitation of Offenders Act 1974 and the Data Protection Act 1998.

A full list of eligible roles is available on the Home Office website in the document CRB Check Eligible Positions Guidance (excuse the long URL – www.gov.uk/government/publications/dbs-check-eligible-positions-guidance )

6.       You have a duty of care towards vulnerable clients. In looking at keeping them safe this vulnerability must be taken into account.  A CRB check on volunteers working directly with them may be a first step, but it should not be the last.

Have a clear Child or Vulnerable Adult Protection Policy in place.  It should be very clear to everyone who has contact with your organisation that you take the policy and your responsibilities very seriously – that in effect you are not a soft touch when it comes to protecting people in your care.

A risk assessment should help design out potential areas of unnecessary risk – eg, if an activity does not need volunteers to be in sole charge of vulnerable people, then they are not.  This would not of course be practical with, say befriending, but each activity needs to be looked at from the point of view of taking reasonable steps to improve safety.

Monitoring and communication means that you will have a closer eye on what is going on, and any concerns service users, volunteers, paid staff or others may have.  Everyone should know exactly what to do if they do have such concerns, which should of course be followed up.

7.       Be prepared for changes to criminal record checking.

The Protection of Freedoms Bill is currently before parliament. Part 5 of the Bill proposes changes to the scope and process of criminal record checking. Content of the Bill may be amended, but at present it contains a redefinition of roles that can be checked, and changes to make it easier for previous checks to be accepted and updated.

Keep an eye open for updates from Volunteering England and your volunteer centre.

8.          Reimburse out of pocket expenses only! Giving volunteers flat rate payments, such as £5 per day, to cover their expenses may cause problems for both volunteers and your organisation.  Any money received by volunteers other than as a genuine reimbursement will be seen as income by Jobcentre Plus and HM Revenue and Customs.  Volunteers on means tested benefits may lose part of their benefits payments.  Whatever benefit they are on they will be treated as part time workers rather than volunteers.  HMRC will regard the payments as taxable.

On top of this, the payments are likely to be seen by Employment Tribunals or Minimum Wage Inspectors as forming part of an employment contract.  Volunteers found to be employed could claim access to some or all employment rights, including the minimum wage.

Therefore care should be taken to reimburse actual costs as shown by evidence such as receipts or bus tickets.

9.          Describe your relationship with volunteers in terms of expectation rather than obligation.  A recent employment appeal tribunal highlighted the use of the term ‘reasonable expectations’ by an organisation as a sign that they had no intention of creating employment relationships with volunteers.  This phrase is helpful, and a good description of what volunteering is all about – mutual trust without legal ties.

As an example, volunteer agreements should be set out in the following form –

This is what you can expect from us:

…

…

This is what we expect from you:

…

…

– rather than as ‘You must ….’.   It is, however, fine to say ‘must’ when it comes to your organisation’s legal responsibilities, so volunteers must follow health and safety and equal opportunities policies.

10.     Avoid offering perks or material incentives for volunteers. Even non monetary perks could be seen as ‘consideration’ – in effect a payment forming part of a contract of employment.  Training provided for volunteers to enable them to carry out their work is not problematic, but unrelated training could be.  Small token gifts – eg at Christmas – are ok, but substantial rewards such as vouchers are likely to be regarded as a payment.

Further information

Health and Safety Executive

www.hse.gov.uk

Criminal Records Bureau

www.gov.uk/disclosure-barring-service-check

www.gov.uk/disclosure-barring-service-check

Information Commissioner’s Office (Data protection issues)

ico.org.uk

Volunteering England

www.ncvo.org.uk/practical-support/information/volunteer-management

© Mark Restall          Permission is granted to pass on this information on a not for profit basis, but please credit me and include my contact details!

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