Legal issues around managing volunteers in England and Wales

Slide 1 Title slide

Hello and welcome to this recording from Support Cambridgeshire. This training introduces the key legal issues around managing volunteers.

The guidance links, available in the transcript you will find alongside this recording, will provide you with all the materials we mention.
Please note that this guidance is not intended to replace advice from a legal professional.
Slide 2 Outline of session
This session will give you headline information to put in place the policies and procedures to help you deliver your legal responsibilities to volunteers and those they support. We will look at:
– Employment rights
– Who can legally volunteer
– Key legislation covering:
Equality
Health and Safety
Data Protection
Copyright
Safeguarding

Slide 3 What is a volunteer?

There is no legal definition of a volunteer but the following is used by the Disclosure and Barring Service (more on them later)

A person engaged in an activity which involves spending time, unpaid (except for travel and other approved out-of-pocket expenses), doing something which aims to benefit some third party other than, or in addition to, a close relative.

Slide 4 – Trustees as volunteers

Trustees are responsible for the governing of a charity and usually have more responsibility and liability than non-trustee volunteers. We have a specific training available for trustees ‘What do trustees have to do?’ which can be found in the guidance links

Slide 5 – Why understanding legal issues matters

Failure to understand how legislation relates to volunteers could result in organisations facing legal action:

with volunteers claiming employment rights
around failure to protect volunteers
and around failure to provide training and support to ensure volunteers are able to perform their roles without causing harm to beneficiaries or the wider public.

An organisation’s lack of legal understanding can also result in negative consequences for volunteers themselves, impacting on their finances and wellbeing.

Slide 6 – Volunteers claiming employment rights

Volunteers do not have the same legal rights as people with employment contracts unless a contract is inadvertently created:

It is worth being aware of what creates a contract –

A contract is a legally binding relationship between 2 parties. A contract needs 4 elements to be legally binding.
- An offer – this is a promise by one party with the intention of creating a legal obligation
- Acceptance – the response to the offer which can be written or verbal
- Consideration –. this can be a payment or something in kind such as equipment or training not directly related to the volunteer’s role
- An intention by both parties to create a legally binding relationship that a reasonable person would accept as intending to create a contract.

By contrast volunteering is a gift relationship and is not legally binding on either party.

There have been cases where volunteers have been able to take an organisation to an employment tribunal and prove that a contract exists. . For more details see the guidance links

Slide 7 Minimising the risk of giving volunteers employment rights

If a contract is created with a volunteer they could be awarded employee status, which in the worst-case scenario, could make them eligible for the national minimum wage backdated for the entire period of their volunteering. This could have serious consequences for a charity.

The danger of creating a case for employed status is minimised by ensuring that there is no legally binding contract in place and that there are clear policies and procedures specifically for volunteers that avoid using language associated with employment. For example, volunteers perform a role and not a job and are reimbursed for expenses and not paid. Good records need to be kept of training undertaken and expense payments received.

The organisation might consider putting in place a volunteer strategy and a volunteer policy which will clarify how the organisation interacts with volunteers, clearly demonstrate how volunteering differs from the work of any employees.

Volunteer role descriptions clarify the purpose, qualities and requirements of a role helping distinguish them from employee job descriptions.

Volunteer agreements are statements of mutual expectation that can be ended at any time by either party and are not legally binding.

Slide 8 Managing expenses

Mismanagement of expenses can cause problems for your volunteers and you could be seen to be paying a consideration which is one element of a contract.

The Inland Revenue rules permit volunteers to reclaim costs incurred or which will be incurred whilst volunteering including mileage, a reasonable meal, specialist clothing and care costs for dependents. However, although it is best practice to offer expenses organisations are not legally obliged to pay them.

Payments made to volunteers that are more than out of pocket expenses may be treated as taxable income. If the volunteer is in receipt of benefits any over payment may impact on benefit payments as they will be treated as if they are in paid work.

By collecting and keeping the right documentation as outlined in an expenses policy you protect both the organisation and the volunteer.

See the link in the guidance notes on volunteering and claiming benefit payments

Slide 9 – Who can legally volunteer?

We often get asked questions about whether the law allows certain groups of people to volunteer. The good news is that most people are legally able to volunteer. The exceptions being those whose visa status excludes them and those who do not meet the required criminal or safeguarding records checks for a particular role

People on benefits can volunteer if they continue to meet all the conditions of their benefit. It is advisable for people on benefit to inform the benefits office that they are volunteering
The legal restrictions on employing young people do not apply to volunteers. However, under 18’s are legally classed as vulnerable and safeguarding guidelines will apply. It is also necessary to check if under 18’s are covered by your insurance and you should put in place a separate risk assessment. There is a guidance link for a handbook on managing young volunteers at the end of the transcript.
Visitors from overseas can volunteer if their visa allows them and it is advisable to ask them to check with the immigration service. Those on tourist visas can volunteer as can refugees and asylum seekers. Some larger organisations insist on Right to Work checks for volunteers – this check is to ensure a job applicant is eligible to work in the UK and is only legally required for employees.
People with criminal convictions are legally permitted to volunteer and where a person has completed their rehabilitation, they do not have to disclose a conviction unless the role meets certain exemption requirements. Exemptions will usually apply to roles with access to children or adults at risk of abuse.

Slide 10 – Equality Act 2010

In this section we will work through the key legislation those managing volunteers need to consider. We will highlight key areas to be aware of and look at how to mitigate the risk of facing legal action. Starting with the equality legislation.

The equality Act protects people against discrimination, harassment or victimisation because they have, are perceived to have or are associated with someone else with any of the protected characteristics, which are:

Age
Disability
Gender reassignment
Marriage and civil partnership
Pregnancy, maternity (including breast feeding) and paternity
Race
Religion and belief
Sex
Sexual orientation

Slide 11 – Volunteers as service users

Volunteers do not have the same legal protect as employees, however service users are protected. The Equality and Human Rights Commission has advised that volunteers could (in some circumstances) be seen as service users creating the potential for a legal case to be brought. Many organisations address this head-by adding a clause like the following to their volunteer equality statement

We do not intend to create a contractual relationship with our volunteers but as a matter of respect and dignity we want to treat volunteers inclusively and fairly wherever reasonable.

Slide 12 – Volunteers as service deliverers

If your organisation provides advice in person or online, a community centre, shop, club, care home, or a private club or association with more than 25 members then the Equality Act applies to your services.

Where volunteers help you deliver your services they are seen as service deliverers carrying out your instructions. If, in their planning or delivery of these instructions the volunteer does something defined as unlawful discrimination, harassment or victimisation, you can be held legally responsible for what they have done.

Slide 13 – Minimising the risk

Put in place an Equality Diversity and Inclusion (EDI) policy and procedure for volunteers to follow

Offer training and ongoing support to ensure volunteers understand how to behave and carry out their tasks keeping within the law. Check out the guidance links for more on this.

Slide 14- Health & Safety

Volunteers are not protected by all the same health and safety legislation as protects employees. However, an organisation has a duty of care to anyone they encounter to ensure they do not cause any unreasonable harm.

As service deliverers, volunteers need to be trained and supported to ensure public safety. It is best practice to put in place a health and safety policy and procedure for volunteers to follow. This will include putting in place risk assessments for activities and venues.

Although there is generally no legal obligation to insure volunteers, the Charity Commission strongly advised that volunteers are covered by the same level of insurance as employees. We have an on-demand trainings available on health and safety and on insurance (see guidance links)

Slide 15 – Data protection

The regulator for all organisations managing data is the Information Commissioners Office (ICO) which produces a wealth of guidance. Most volunteer-involving organisations hold information on their volunteers. This information is likely to be personal data (that identifies an individual) and may also include sensitive data (which is confidential data such an individual’s medical record which must be kept particularly secure). This information is likely to be personal data and may also include sensitive data. Volunteers data is protected and volunteers can view their own records through subject access requests including access to references given by 3^rd parties.

As service deliverers, volunteer must comply with data protection legislation- There is no volunteer exemption and any organisation that asks volunteers to process data must manage the risks adequately.

The NCVO data protection and volunteers guidance in the guidance links explains the legal requirements for handling data (The data protection principles) and the reasons (the lawful basis) you must establish for processing data. Please note that in most cases not for profit organisations managing their own data do not have to register with the ICO

Slide 17- Minimising risk

To minimise risk put in place a data protection policy and procedure for volunteers to follow. Ensure you have in place a privacy statement that can be shown to anyone whose data is being collected. In the guidance links there is a Create your own privacy statement tool. Ask volunteers to complete an information consent form for their own data (see guidance links for a template). Ask volunteers to sign an agreement covering data protection and confidentiality (example shown in guidance links)

Offer training and ongoing support to ensure volunteers understand how to carry out their tasks keeping within the law.

Slide 18 – Copyright

When an employee creates something as part of their contract of employment, whether it is a blog, photo or illustration, the material belongs to the employer. This is NOT the case for volunteers who retain the copyright for whatever they create. This can be challenging when a volunteer decides to withdraw their permission for something the organisation has invested in. For example, a logo or a photograph used in a printed leaflet or on a display board.

A volunteer can be asked to complete a deed of assignment to transfer copyright to the organisation – an example is shown in the guidance links. An alternative is to agree a licence where the volunteer retains ownership but allows use of the material, this is usually in return for a consideration. If a license is agreed legal advice should be sought to avoid complications over whether any payment could contribute to the creation of an employment contract.

Slide 19 – Safeguarding

Charities have a responsibility to keep everyone who is in contact with the organisation safe, including online.

You must minimise the risks of any harm or abuse
Ensure everyone has confidence their concerns will be dealt with appropriately
Ensure everyone at the charity understands their role in ensuring safeguarding

Slide 20 – Child protection

People working with children are expected to report concerns about a child’s welfare to the relevant agencies.

Organisations that work with children and families must have safeguarding policies and procedures in place.

A summary of all key legislation is available from Writing safeguarding policies and procedures | NSPCC Learning

Slide 21 – Adult at risk protection

The Care Act 2014 applies to any person 18 plus who:

Has needs for care and support
Is experiencing, or at risk of, abuse or neglect.
Is unable to protect themselves from the risk or experience of abuse or neglect.

Only those that meet the adult at risk criteria should be referred to adult safeguarding.

Slide 22 – Disclosure and Barring Service (DBS)

The DBS maintains a record of a person’s criminal convictions and cautions and decide who should be barred from working with vulnerable groups and put on the barred list. The DBS maintains 4 different levels of check (these together with more detail on the definitions of regulated activity are explained in the Safeguarding for volunteer managers guidance link).

Before an organisation considers asking a volunteer to assist them in making an application for a DBS check, they are legally responsible for ensuring that they are entitled to submit a check for the role – not all roles are eligible for DBS checks. There is a link to an eligibility tool shown in the guidance links.

DBS checks can only be carried out for successful applicants who are appointed to a role, so when you make an offer to a volunteer you should clearly say that it is subject to a satisfactory DBS check

You should be aware that under the Rehabilitation of Offenders Act 1974 people do not have to disclose spent convictions in an application form unless the role is exempt from the Act.

Slide 23 – Regulated activity

Regulated Activity is a legal phrase used to describe specific circumstances where individuals are working or volunteering with children or vulnerable adults because of help or treatment they are receiving. A definition of regulated activity is show in the guidance links.

Anyone volunteering in regulated activity will be required to have an Enhanced DBS with barred list check. The barred list is a database that contains the details of individuals who have been banned from working with children or vulnerable adults due to past behaviour or offences.

It is illegal to knowingly allow a person on the barred list to work or volunteer in regulated activity.

Anyone who supervises staff or volunteers who carry out Regulated Activities will also need the same level of check.

Slide 24 – DBS further information

Unless an organisation is requesting large numbers of DBS checks they will be required to use an umbrella body to submit their DBS forms. The DBS does not charge for volunteer DBS checks but the umbrella body will charge an administrative fee.
The DBS update service (see guidance links) is a subscription service that is free for volunteers. The update service keeps the certificate up to date adding any new convictions and can be shared with other volunteering organisations if the volunteer wishes to share it. Volunteers must choose to register for the update service themselves within 30 days of their certificate being issued.
DBS checks can only be done for people aged over 16
Any DBS certificate information is confidential. It should be kept securely and only seen by those who need to see it as part of their duties
DBS checks for refugees and asylum seekers require a particular approach involving fingerprinting (see guidance links)
DBS checks are not suitable for people (other than refugees and asylum seekers) who have recently lived outside the UK but it might be possible to obtain a similar check from the country where they were last resident. See guidance link for Getting a criminal record check from outside the UK

Slide 25 A culture of safeguarding

Organisations need to put in place a culture of safeguarding – DBS checks will only show up concerns for people who have been convicted of offences or placed on the barred list and not all roles are eligible for these checks. Therefore, the way your organisation recruits, inducts, trains and supervises volunteers encouraging people to be open and share any concerns is key. For more on a developing a culture of safeguarding see the guidance links below.

Offer training and ongoing support to ensure volunteers understand how to behave and carry out their tasks keeping within the law. See the guidance links below for training you can share with volunteers.

Put in place safeguarding policies and procedures for volunteers to follow. There is safeguarding policy guidance shown in the guidance links which takes you through what a child and an adult safeguarding policy and procedure should cover

Slide 26 To find out more

For more detail on all of the topics covered here check out the guidance links in the recording transcript.

You can also contact our team at for help including help with policies and templates

Info@supportcambridgeshire.org.uk