Kate Wyatt says charities must know where they stand with volunteers

Scotland has around 1.2 million charity volunteers, over a quarter of the population.

But while essential to the operations of charities large and small, volunteers can also be a risk factor.

This is because the line between paid employees and volunteers can easily become blurred, either at the start of a volunteering relationship or during it.

When this happens, charities make themselves vulnerable to claims for backdated national minimum wage, holiday pay, unfair dismissal, statutory sick pay, and redundancy payments.

Most charities think they are clear on the difference between their volunteers and their employees

Kate Wyatt

The danger areas

Most charities think they are clear on the difference between their volunteers and their employees: volunteers do not have employment contracts and they do not get paid.

This is correct, but on both counts the rules may be less clear-cut than you think.

First, an employment contract does not have to be written, so volunteers do not have to have anything in writing to claim employees’ or workers’ rights.

Second, charities that are too generous or relaxed about offering volunteers expenses may be deemed to be paying them. Training can also be seen as a benefit in kind if it does not relate to the volunteer’s current role.

Free will

Volunteers help charities out of their own free will. Questions about their status can therefore arise when charities require them to do tasks, imply there will be consequences if they fail to do them, or talk about “duties” or “job descriptions”.

All of these can put you at risk of creating an unwritten employment contract.

Expenses or payments

To avoid expenses becoming payments, reimburse only genuine expenses. For example, if you routinely give £5 or £10 for travel to a volunteer who lives just round the corner, this could be seen as payment.

The same principle applies with expenses for food and drink or equipment: ask volunteers to produce receipts for their actual expenditure and only pay reasonable amounts for that actual expenditure.

Volunteer agreements

An effective way to maximise clarity over volunteer status is to have a written volunteer agreement (note the use of the word “agreement” rather than “contract”).

Set out what you hope for or expect from your volunteers – for example, in terms of time commitments and behaviour - rather than what you require.

* Be clear on your expenses arrangements,

* Use the agreement across your whole organisation, to avoid individual managers imposing requirements or introducing their own expenses arrangements,

In addition, a good volunteer agreement can protect you against other legal and reputational risks by covering other elements:

* Data protection arrangements,

* Health and safety obligations,

* Vetting arrangements if your volunteers work with children or vulnerable adults,

* Processes to follow if volunteers have issues or complaints, or their behaviour or performance is unsatisfactory.

Don’t let any of this scare you into regarding volunteers as threats or potential litigants. Your volunteer agreement makes sure both you and your volunteers understand what’s expected and can thereby protect you against risk.

It’s better for everyone if there is clarity around what your volunteers do – or don’t do.

Kate Wyatt is a partner in Lindsays’ employment team.