When Does a Volunteer Become an Employee?

The blurring of lines between when a volunteer becomes an employee can occur quite easily if left unchecked. And can be potentially costly. Often volunteers can stray in to the realms of “employment” inadvertently because of ill-advised and rigorous structures that mirror employment conditions. Some volunteers in the past have been able to prove that they were effectively “employed” but were being treated less fairly than actual employees. This article aims to highlight the distinctions and where caution and action should be taken.

Volunteer Rights and Employment Law

There is no legal definition of a volunteer. There is also no law that protects the rights of volunteers. This can been seen as both positive and negative; positive in that, the lack of legislation means volunteering can remain flexible, inspirational and spontaneous and negative in that it can mean volunteers are vulnerable to being treated poorly or discriminatorily which can result in damage to an organisation and individuals.

Volunteers are not legally protected against unfair dismissal or discriminatory practice, they also do not have rights to leave, maternity conditions or payment of the national minimum wage. No contract of employment can exist with a volunteer.

Accidentally employing a volunteer

There have been cases in the past where volunteers have been able to successfully prove that organisations have actually implied a contract of employment and therefore that the volunteer should have been treated as an employee as they have been working under employment like conditions. This can occur when:

• There has been a “contract-like” expectation to work
• Where sanctions have been used for example having to repay the cost of training for non-attendance
• Where there has been a clear intention that the volunteering would lead to paid employment
• A payment, gift or reward has been issued with expectation
• Policies and agreements have not been adapted for volunteers

Payments to volunteers

Reimbursing volunteer expenses should be the norm for any volunteer-involving organisation. However, additional payments, rewards or prizes given to volunteers are potentially problematic for a couple of reasons. If these additional benefits are received with expectation by the volunteer then this can be viewed as a regular payment and thus potentially implies a contract of employment. Secondly, additional payments which are not a direct reimbursement of expenses incurred by the volunteer are potentially taxable and could affect any benefits volunteers may be in receipt of.

Distinction between Employees and Volunteers - Key points to remember

Distinct Role Descriptions: Create separate role descriptions for volunteers, these should be less formal than a job description and provide more flexibility.

Volunteer agreements not contracts: Volunteers should have a written and signed agreement with the organisation. This must outline the role and the expectations from both sides. It should never be called a contract and should also remain flexible.

Celebrations and recognition instead of payment: other than expenses, do not pay your volunteers or gift them with any additional reward that could be misconstrued as a regular or expected payment. By all means, celebrate your volunteers, buy them a birthday present or pay for their Christmas meal. Rewards should be one-off and exceptional.

Adapted policies and procedures for volunteers: organisations should outline which of their policies and procedures volunteers should adhere to e.g. Health and Safety, Child Protection. Where possible adapt these policies to show recognition of where volunteers fit and what their role is. Do not include volunteers in employment-related policies such as Annual Leave or Maternity.

Different support and supervision structures – support should be a holistic and less task focused.

Flexibility: Volunteers should not be held to the same accountability as employees. Flexibility should always been demonstrated with volunteers. Remaining open to change in circumstances.

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