Volunteer entitled to expenses classed as worker
The Employment Appeal Tribunal (EAT) has ruled that where a volunteer is entitled to claim expenses in respect of his voluntary activities, he is a worker (for the purposes of employment law) in respect of those activities.
The volunteer in question volunteered at the Coastal Rescue Service (“CRS”). He was subject to disciplinary procedures and was refused a trade union representative (this right being reserved for workers). HMRC had reviewed the volunteer arrangements at the CRS and concluded that the role in question was not that of a worker. The original Employment Tribunal agreed that the role was that of a volunteer.
On appeal, the Employment Appeal Tribunal held that for those activities for which the volunteer could claim expenses, the volunteer was a worker.
The Maritime and Coastguard Agency has a Volunteer Agreement Handbook and Code of Conduct. In these documents it is made clear that no contract of employment is created, and that the volunteering is unpaid with no minimum obligation.
On the other hand a lot of expectations were placed on the volunteers. There were loyalty and training obligations and an expectation that volunteers would attend emergencies. The Code contains 13 requirements starting with 'must'. The phrase 'voluntary two way commitment' was explored by the EAT as being contradictory - a two way commitment gives rise to a contract for services.
The Handbook and Code also gave the right to volunteers to claim for expenses, both the minor costs associated with volunteering but also compensation for the social and financial impact of unpredictable disruption and anti-social hours. The vast majority of activities could be claimed for, with only two outside the expenses system - including unauthorised attendance at events. Volunteers were given a payslip, an annual P60 and a P45 if they left.
The EAT was clear that for all those volunteer activities where expenses could be claimed, that right gave rise to a contractual relationship. "Sums payable in respect of attendance are properly characterised as remuneration". This was the case even where the volunteers did not claim expenses. As a contractual relationship existed, the volunteers would be workers for the purposes of the Employment Relations Act 1999 and the Employment Rights Act 1996. As a result they would be entitled to the protections these Acts bring - from the right to trade union accompaniment to protections under equality law.
The EAT also rejected the proposal that volunteer arrangements are 'sui generis' - 'in a class of their own' operating outside the law and governed only by honour.
What should charities do in response?
One major issue in this case was the unclear volunteer documents - it is worth reviewing to make sure no mutal obligations are created, no minimum number of sessions required. If volunteers are able to claim payment above actual expenses you should now consider whether they have protections under equality law. We would recommend seeking advice if you have any questions.
We will be exploring this developing area further in our Summer newsletter later in the year. Do get in touch if these issues have affected your charity.
For more information please contact Rebecca Pallot [email protected] a partner in our employment team.