Volunteers and the law

  1. There is no “Volunteer Law” as such, so the law around volunteers is less clear than say Employment Law.  Employment Law may be used if it can be proven that a person was employed as opposed to volunteering*, which is why some of the suggestions below (around expenses, perks and language) are important.
    * There have been a small number of cases where this was the case.
  2. It is now illegal to DBS check people unless they are
    1. regularly caring for, supervising, training or in sole charge of a child/vulnerable adult (within this definition the term ‘regularly’ is not currently defined – a common sense approach is used)
    2. doing a regulated Activity – This involves contact with children or vulnerable adults and is:
      a) Of a specified nature (e.g. teaching, training, care, supervision, advice, treatment or transport) or
      b) In a specified place (e.g. schools, children’s homes, hospitals,  juvenile detention facilities, adult care homes)
      c) ‘Frequent‘(once per month) or ‘intensive’ (four or more times in a 30 day period), or overnight.
  3. People cannot be forced to volunteer, volunteering is by its very definition voluntary so ensure there are no words like obligation/ compulsion/ mandated in your volunteer policies and agreements!
  4. When dealing with expenses it is better to reimburse out of pocket expenses (with receipts) rather than to give a flat rate per day which could be seen as payment rather than reimbursing expenses
  5. When creating agreements, etc. for volunteers it is advisable to use language reflecting the role is volunteering not employment (“role” not “job”; “expectation” not “obligation”; “volunteer” not “employee”)
  6. There are no statutory age limits on volunteering.  For older volunteers it’s a good idea to check your insurance covers you.  For younger volunteers as well as checking your insurance it’s a good idea to  get parental consent ; be aware you might need to seek child employment permits from the local authority if the volunteering role involves handling money, e.g. in a charity shop and revisit things like risk assessments and safeguarding with young volunteers in mind.
  7. Refugees and asylum seekers are allowed to volunteer. There are no restrictions at all on people with refugee status.
  8. Non-UK citizens can volunteer, although be aware that some cannot as it will depend on their immigration status.  If in doubt, the volunteer should talk to the UK Border Agency to confirm they are allowed.
  9. It is best to avoid offering perks or material incentives for volunteers (including non-monetary perks) as this could be seen as ‘consideration’ – in effect a payment forming part of a contract of employment.
  10. The data protection act applies to information held on volunteers, so as an organisation consider the following questions:
    1. 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 not 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.
    2. 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.

Volunteers and the Law guide created by Mark Restall in 2005

Below is an update from Mark as at 2012 on changes since he wrote the original guide in 2005.

(Volunteers and the Law update (as at October 2012) on the 2005 guidance created by Mark Restall in 2012 for a training session at BwDCVS)

This is a short update on the legal changes between when Volunteers and the Law was produced in 2005 and October 2012.

In general it isn’t as out of date as you’d imagine a law book to be after all this time.
Please note that this is not a statement of law and is in no way a substitute for professional legal advice.

Chapter One: Volunteers and Employment Rights

Very little has substantially changed since this chapter. The guidance on what a contract is, and how to avoid creating an employment contract with volunteers still applies.

There have been some employment tribunal cases since South East Sheffield Citizens Advice Bureau v Grayson [2004], but they have not contradicted its findings, being faced with fairly similar volunteering practice. The key cases that I am aware of are:

Here it was argued that the volunteer role amounted to an ‘occupation’ under the terms of the European Equal Treatment Directive that underpins our equality law. The case has thus far been unsuccessful, but is being taken to the Supreme Court this month (October 2012).

There has been an amendment to the National Minimum Wage Act 1998 (NMWA). The Employment Rights Act 2008 adds an additional clarification on expenses for ‘voluntary workers’ – to the quoted section 44 of the NMWA add:

“(1A)For the purposes of subsection (1)(a) above, expenses which—

  • (a) are incurred in order to enable the worker to perform his duties,
  • (b) are reasonably so incurred, and
  • (c) are not accommodation expenses,

are to be regarded as actually incurred in the performance of his duties.”

Chapter Two: Benefits and Tax

The general guidance holds for this chapter. Incapacity Benefit has been slowly replaced by Employment and Support Allowance, but the rules for volunteering by claimants remain the same.

Chapter Three: Safety and Security

The main update for the Health and Safety section would be the Compensation Act 2006. Section 1 is an instruction to courts considering a case of negligence or of statutory duty., It tells them that if they are deciding whether steps could have been taken that could have prevented/lessened the seriousness of the accident they can take into account whether or not these steps would have prevented a ‘desirable activity’ from going ahead, or have put people off from participating in it.

‘Desirable activity’ is not defined, but the intention was to provide extra peace of mind for voluntary groups, sports activities and so on.  Please note that this does not remove the duty of care towards volunteers, or the duties under section 3 of the Health and Safety at Work Act.

The criminal record checking information is out of date. There is a link to new Disclosure Barring Scheme

Chapter Four: Data Protection, Copyright and the Human Rights Act

I am unaware of any substantial changes to this information.

Chapter Five: Specific Volunteering Situations

Again, there are no substantial changes that I am aware of.

I would, however, urge anyone involved in volunteer fundraising to take any current information from the Institute of Fundraisers website rather than Volunteers and the Law – it’s an area I haven’t touched since writing the book, and in any case only wrote a short summary for it.

The Association of British Insurers has compiled a list of its members who have pledged not to impose an extra premium on their customers who use their vehicles to volunteer with.

Health & Safety Myths