Volunteer or employee - what's the difference

Volunteer or Employee: Do you know the difference?

Wednesday 16th May 2012

Stephen Jenkins, Partner

What is a volunteer? • No single definition• CRB rules• Compact Code of Good Practice

The growth in volunteering• The third sector• The “Big Society”

Volunteer or employee: Why is it legally important? • Employment rights• Tax and National Insurance• Intellectual property

Employment rights

• Employees: unfair dismissal, redundancy• Workers: minimum wage, annual leave• Others: discrimination

Employee status • Statutory definition• Case law tests

Case law tests• Multi-factorial approach• Control• Integration• Personal service• Mutuality of obligation

Worker status• Statutory definition• Personal service• No profession or business• Mutuality of obligation

Discrimination protection• Employees• Workers• Equality Act 2010

Equality Act 2010• s83(2): self-employed, providing personal service• s55: seeking or undertaking vocational training

Volunteer case law

Migrant Advisory Service v Chaudri (1997)• Administrative work• 2 year period• 4 mornings a week• Paid £25 per week “expenses”• Paid when on holiday or sick

Volunteer case law

Murray v Newham CAB (1999)• Agreement for specific times and for minimum

period• Training provided• Basic training courses

Volunteer case law

South East Sheffield CAB v Grayson (2004)• Agreement not signed• “To clarify the reasonable expectations”• “Usual minimum commitment” of 6 hours per

week• Requirement to give as much notice as possible

Volunteer case law

Melhuish v Redbridge CAB (2005)• Requirement to observe standards• Training courses

Volunteer case law

X v Mid Sussex CAB (2010)• No formal contract• CAB volunteers often become paid employees• X argued was vocational training

Volunteer case law

Breakell v West Midlands RFCA (2010)• Paid capped allowance to compensate for lost

earnings

Practical Tips • Draft agreements carefully• Make it clear not intending to create a contract• Only pay genuine out of pocket expenses• Don’t offer benefits in kind• Reduce obligations• Talk of “expectations” not “obligations”• Don’t make job offer dependent on volunteering

Cardiff Derby Nottingham

Thank You

Contact Details

Stephen JenkinsDD : 029 2039 1730 stephen.jenkins@geldards.com