Do you have volunteers working in your business?

This case is of particular interest and does raise concerns for anybody organisation who uses volunteers in their business.  The Claimant, Groom, was a volunteer in the Coastal Rescue Service who have approximately 3500 volunteers in total.  Groom brought a claim before the Tribunal for refusal to permit him to be accompanied by a trade union representative at a disciplinary hearing.  This support was only allowed if he was a ‘limb (b) worker’.  The Employment Tribunal found there was no contract between the parties and thus Groom was not a ‘worker’ or ‘limb (b) worker’.

A ‘worker’ as defined in s203(3) of the Employment Rights Act 1996 is an individual who has entered into or works under (a) a contract of employment or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.  A ‘limb (b) worker’ is any worker who fits into the description of (b) above.

The volunteers at the Coastal Rescue Service were governed by a volunteer handbook.  The handbook referred to the voluntary nature of the appointment and set out the expectations of volunteers, including that they would attend training and “maintain a reasonable level of incident attendance”.  For certain activities, the volunteers were able to claim costs to cover “minor costs caused by your volunteering, and to compensate for any disruption to your personal life and employment and for unsocial hours call outs”.

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The Employment Tribunal relied, amongst other things, on the fact that there was no automatic right to pay and many volunteers did not claim it.  It held that the agreement between the parties was a voluntary one.  Groom appealed the decision from the Employment Tribunal.

The Employment Appeals Tribunal upheld the appeal and they found that the Employment Tribunal erred in its analysis.  Whilst, the Employment Appeals Tribunal did not consider whether Mr Martin had an overarching contract, as that was not argued before the Tribunal, they rejected the argument that a volunteer relationship is unique.  They pointed out that there is no definition of ‘volunteer’ and that volunteer status will differ depending on the particular arrangement between the parties.

The Employment Appeals Tribunal held that it was irrelevant that sums were not paid automatically and some volunteers did not claim them.  Instead, they concluded that a contract came into existence when a volunteer attended a relevant activity for which they had a right to remuneration.  In this case, the volunteer’s attendance at training and incidents gave them a right to claim costs.  Further, this volunteer’s attendance was also governed by a Code of Conduct which set minimum levels of attendance at training and rescue incidents.  Those factors gave rise to a contract for the provision of services, not a collateral contract for the reimbursement of expenses incurred.

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During the appeal, the parties agreed that if the obligation existed, it was for personal service, accordingly, the Employment Appeals Tribunal substituted a decision that Groom was in fact a ‘worker’ when he attended activities for which he remunerated.

The findings of this appeal case raise more questions than answers and will cause a lot of organisations to review their relationship with their volunteers.  If this does indeed set a precedent that a volunteer is a ‘worker’, it will have a significant impact on volunteers’ rights

As we know ‘workers’ are entitled to receive the National Minimum Wage, they are protected against unlawful deductions from wages, and they are entitled to work no more than 48 hours on average per week but they can opt out of this right if they choose.  Further, they are entitled to the statutory minimum level of paid holiday and rest breaks.  They are also protected against unlawful discrimination, not to be treated less favourably if they work part-time, and they have the same protection for whistleblowers as employees.

Workers may also be entitled to Statutory Sick Pay, Maternity Pay, Paternity Pay, Adoption Pay, and Parental Pay.

Workers usually are not entitled to minimum notice periods if their employment will be ending, for example if an employer is dismissing them or protection against unfair dismissal.  They are also not entitled to the right to request flexible working, time off for emergencies, or Statutory Redundancy Pay.

Importantly there will be arguments made about what level of pay a volunteer should receive if they are found to be a worker and as to what level of holiday pay they ought to receive as well.

For help navigating around this topic, particularly if you have volunteers working for your organisation, then get in touch with the Employment Law Team at Fraser Dawbarns LLP today via ELS@fraserdawbarns.com, or call your nearest office at:

Wisbech: 01945 461456

March: 01354 602880

King’s Lynn: 01553 666600

Ely: 01353 383483
Downham Market: 01366 383171

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek advice specific to your own circumstances.  Fraser Dawbarns LLP are always happy to provide such advice.