At Work: Human resources - It's the law - Volunteers

Emma Burrows, partner and head of the employment group at Trowers & Hamlins solicitors

Volunteers aren't always volunteers - they're sometimes employees. But the test isn't a simple one.

The status of those who are not automatically regarded as employees is often hard for employers to determine, and the position of volunteers is complex. If a volunteer is deemed either an employee or a worker, he or she will be able to assert a variety of statutory rights.

Various factors help to establish the status of a volunteer. First, if written contractual documentation exists that contains provisions normally found in an employment contract, it is likely that an employment relationship exists.

If the volunteer is expected to work a set number of hours, or the quality or quantity of their work is assessed, this may be indicative of the volunteer acquiring status either as a worker or an employee.

If the organisation exercises control over the worker, there is a greater likelihood that he or she will be viewed as employed. Where appraisals or performance reviews are carried out, these will indicate that there is an element of control over what the volunteer does. Is there is a big overlap between the tasks and responsibilities for volunteers and employees?

If so, a tribunal is likely to infer the existence of an employment relationship.

Finally, any payments made to a volunteer that are not expenses will support their argument that they are an employee or worker.

In the recent case of Melhuish v Redbridge Citizens Advice Bureau, a volunteer who worked two days a week claimed unfair dismissal. He was entitled to take part in training provided by the CAB. If he was unable to work on one of his designated days, he would let the CAB know and a supervisor would find a substitute if possible. It was held that, because there was a lack of consideration in the form of remuneration, and a lack of mutuality in terms of providing work and being obliged to accept it, there could be no contract of employment.

It seems that minor factors, such as any value to the volunteer in being trained, whether they can bring a grievance or whether they have rostered hours when they are at work, will not be enough in themselves to transform what is not a contract into a contract.

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