Legal status and rights of volunteers
There is no legal definition of a 'volunteer' or 'intern' and no specific legislation covering employer-volunteer relationships. The extent of the rights that volunteers or interns may acquire is dependent on their legal status, meaning whether they are an 'employee' or a 'worker' or a genuine volunteer.
Employees obtain all employment related rights including full protection in relation to time off and the right to claim unfair dismissal on the termination of their contract of employment and rights in relation to family and pregnancy. Workers do not share all these rights, although increasingly statutory rights are also being granted to workers. For example, workers are entitled to be protected under the discrimination legislation and from unlawful deduction from wages. They are also entitled to receive the National Minimum Wage (NMW), be paid annual leave and take rest breaks. However, those who are genuinely self-employed, that is, in business on their own account, have no such rights.
Employment status is determined according to factors such as the level of control that the employer has over the way the individual carries out their activities; the requirement that the individual carry out work themselves and not send a substitute; a mutual obligation for the employer to provide work and the individual to accept that work, and other factors pointing towards an employment relationship such as financial dependence, exclusivity of the arrangement and payment during holiday or sickness absence.
Whether a volunteer is an 'employee' or a 'worker' will therefore depend on these factors. Merely labelling an individual as a 'volunteer' or 'intern' will not prevent them from acquiring employee or worker status. Case law shows that the tribunals and courts will look at the reality of the relationship. Employment status of volunteers and interns is therefore not clear cut and will often turn on each individual's circumstances.
Preventing Employment Status
Ways in which employers can reduce the risk of establishing legally binding contractual relationships with volunteers include:
- avoiding a contract– often employers will have a volunteer agreement in place, setting out the hopes and goals of the relationship, but this should not be a legally binding contract. Employers should avoid certain contractual language such as 'rights' and 'obligations' and might also wish to state their intention that the agreement is not legally binding. However, the Department of Business, Innovation and Skills (BIS) has suggested that, where an employer is paying an intern at the NMW rate, a standard short term contract should be in place;
- avoiding financial remuneration of benefits in kind, and anything which may be construed as 'consideration' for the purposes of establishing a contractual relationship;
- allowing volunteers to refuse tasks or choose hours of work and not requiring a certain length of volunteering arrangement will help in establishing that there is not a contractual relationship;
- reimbursing only for expenses incurred and not estimated expenses;
- differentiating between volunteers and paid staff - this does not mean treating volunteers less fairly, but having separate policies and procedures in place to deal with volunteers;
- avoiding disciplining volunteers. Employers should not discipline volunteers or threaten disciplinary action if certain standards are not met. In reality, issues such as poor attendance, misconduct etc can be dealt with by no longer using the volunteer.
There should not be any kind of financial remuneration for the tasks performed or any other such benefit which could be construed as consideration for carrying out the tasks performed. Where there is such payment or 'benefits in kind', the volunteer or intern will be considered a worker who is entitled to be paid at least the NMW.
Employers may reimburse volunteers and interns for expenses actually incurred but should avoid estimated expenses. Government guidance cites travel to and from volunteering and the cost of care for dependents whilst volunteering as examples of such expenses. The occasional gift or reward is unlikely to establish an employment relationship, but regular gifts and rewards should be avoided.
Employers should also note that the promise of a future job offer will also be considered as sufficient consideration to establish that the individual is a worker who is entitled to be paid at least the NMW.
Training is not a 'benefit in kind' if:
- it is necessary to perform the volunteering role;
- it is given for the sole purpose of improving the volunteer's or intern's ability to carry out the role;
- it is necessarily acquired in the course of the voluntary work.
However, training outside of this scope may well be considered benefit in kind for NMW purposes.
It is important to know if, based on the reality of the relationship, the individual is a 'worker' and therefore entitled to the NMW. The consequences of non-payment of the NMW can be serious -the employer could be required to pay six years backdated pay and could face criminal charges if found to have wilfully neglected to pay the NMW.
The Government is now encouraging employers to pay interns the NMW rate, regardless of whether they would qualify as a 'worker' for the purposes of the NMW. Steps are being taken to target the abuse of internships and non-payment of the NMW
Genuine volunteers who are not 'in employment' for the purposes of equality legislation will not be protected from discrimination and will therefore not be able to bring discrimination claims against the organisation they are volunteering for. However, again this is determined by their employment status, which in turn is based on the reality of the relationship.
The Chartered Institute of Professional Development developed a voluntary code of practice on internships in 2009 and BIS collaborated with an advisory body in 2011 to produce the 'Common Best Practice Code for High –Quality Internships'.