People Management: Ambiguity may leave charities at risk

Volunteers' dismissal claims have exposed ambiguity in law, writes Indira Das-Gupta.

The four claims for unfair dismissal by volunteers against the RNLI and the Scout Association have exposed a loophole in the law that legal experts warn could affect other charities.

The main problem, according to David Ogilvy from law firm Turcan Connell, is that there is no single definition of what an employee is.

He says: "The definition included in the Employment Rights Act is different from that in the Disability Discrimination Act. In the former, an employee is defined as someone who enters into a contract of hours. A charity such as the RNLI would probably need to know if a volunteer was available to work nights, for instance, and would then need that person to actually turn up when there's a call.

"It's quite a skilled task, and he or she would probably need training. If there's a disciplinary procedure to deal with someone who doesn't turn up, that would also suggest the person is an employee."

One case that has set a worrying precedent for charities that depend on volunteers is Murray v Newham Citizens Advice Bureau. Murray successfully claimed he had been discriminated against for being disabled, even though he was not a paid employee. The decisive factors were that, even as a volunteer, Murray was obliged to turn up for training, and his work was controlled in terms of how he was expected to carry out tasks.

There are steps a charity can take to avoid such claims. Charities should be exempt from having to pay the minimum wage if they can prove that they have provided only out-of-pocket expenses for costs incurred through being a volunteer.

But Ogilvy warns: "This does not preclude the possibility that they could successfully claim worker or employee status. As a matter of good governance, charities should try to assess the true legal status of their volunteers and assess the risk of a volunteer becoming protected by legislation.

"The fact that status is not easy to determine suggests it is only a matter of time before more successful claims are brought."

Other legal experts feel the risk to charities has been overstated. William Garnett from Bates, Wells & Braithwaite says: "We have successfully fought three cases brought by volunteers against charities in the past nine months."

But as Ogilvy points out: "Even if a claim is not successful, it takes time to fight it."

KEY POINTS

- The Scouts Association and the RNLI are being sued by volunteers for unfair dismissal

- The main problem is the absence of a single definition of what an employee is

- There are steps charities can take to avoid claims from volunteers

- This does not preclude the possibility that volunteers could claim worker status

- Some experts feel the legal risk is exaggerated.

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