What are the Legal rights of volunteers?
Volunteering is on the increase. In a 2013 survey, 44% of adults said they volunteered at least once a year and 29% said they volunteered at least once a month (UK Civil Society Almanac 2014). So what are volunteers’ legal rights?
Well, to start with let’s look at what rights volunteers don’t have. Volunteers are not employees and they don’t have employment rights. So they don’t have rights to:
- A fair dismissal
- Protection under the Equality Act
This does depend though on your volunteers actually being volunteers. Some volunteers have successfully argued before a Tribunal that in fact they are employees and therefore entitled to employment rights, for example not to be discriminated against.
This is a complex area of law. But briefly, if you do not give your employees any financial reward (itemised expenses and some limited catering is allowed but not subsistence or vouchers); you do not have too much control over your volunteers or fixed work requirements; and your documentation is not intended to be legally binding, then your volunteers should be genuine volunteers without employment rights. This difficult but important issue will be covered in more detail on BVSC’s course on volunteers, see below.
These are the rights volunteers do have:
Health and Safety
Volunteers are entitled to be protected from health and safety risks. This means that organisations should carry out a risk assessment for volunteers and have a Health and Safety Policy. Although not a legal requirement, organisations should also have liability insurance for volunteers.
Data Protection Legislation
Volunteers are entitled to have their personal data processed in line with the Data Protection Act, in the same way as employees. Make sure you protect volunteers’ data in accordance with your Data Protection Policy. So only obtain and keep “relevant information” which is necessary for you to manage the volunteers, and look after this securely.
State Benefits and Allowances
Volunteers may continue to receive benefits and allowances while volunteering. There is no limit to the number of hours which people on benefits may volunteer, but job centre officials may decide that those volunteering full time do not have time to seek work actively and question their availability. It can therefore be helpful for organisations to provide a letter stating that volunteers:
- Are only receiving reimbursement for out-of-pocket expenses
- Can easily be contacted if work becomes available
- Are free to attend interviews at 48 hours’ notice
- Are free to take up work at one week’s notice.
However, legal issues surrounding volunteers don’t end there. Organisations have a number of other legal duties, including the following:
Disclosure and Barring Service (DBS) Checks
It is a legal requirement for organisations to check that a volunteer engaged in a ‘Regulated Activity’ is registered with the DBS. However, it is against the law to try to obtain a disclosure of information on someone for whom a DBS check is not required. If in doubt, look at the DBS website or phone their helpline.
Check that your volunteer drivers have informed their insurers that they will be using their vehicle for volunteering. This should be part of “social, domestic and pleasure” use of the vehicle and should not increase the premium.
Volunteers from Overseas
There are no restrictions on volunteering for people from EEA countries. Other nationals may require a work permit or a volunteer visa, depending on their nationality. People with refugee status or exceptional leave to remain and their family members may do any type of work including voluntary work. Asylum seekers may volunteer, but not enter paid employment. It is important that volunteering is genuine, and not employment substitution.
It is the responsibility of foreign volunteers to make sure they are legally entitled to volunteer and organisations are not required to check their documents. However, the Home Office suggest that it is safer for organisations to document check volunteers in case they are not volunteers but in fact unpaid employees (see above).
Elizabeth Scholes is an independent Employment Law and HR Consultant who specialises in the Third Sector. A former employment solicitor, Elizabeth has worked extensively with charities and voluntary organisations, and has also been a Trustee at two large Birmingham charities.
This article, by Elizabeth Scholes, was written for the August & September 2015 edition of Update Magazine.
BVSC runs a regular training session – ‘Volunteers: Managing, Motivating and the Law’ – led by Elizabeth Scholes, as part of its ongoing training programme. Check the website for any forthcoming dates.