The distinction between volunteers and workers can have significant legal consequences for organisations. In the recent case of Mr. Martin Groom v. Maritime and Coastguard Agency [2024], the Employment Appeal Tribunal (EAT) examined the employment status of a volunteer.
Personal service and control
A key factor is whether the individual is required to provide personal service and is subject to a degree of control by the organisation. In the case of Groom v Maritime and Coastguard Agency (2024), the EAT found that a volunteer coastal rescue officer was a worker during periods when he carried out activities he could be paid for, even though he was described as a ‘volunteer’. The EAT emphasised that a contract came into existence each time Mr. Groom performed an activity the organisation agreed to pay for.
Remuneration and benefits
The presence of remuneration or benefits beyond mere expense reimbursement is another crucial factor. In Groom, the volunteer agreement allowed claims for payment to cover costs and compensate for disruption to personal time. The EAT held that the right to be paid, whether or not payment was claimed, was a critical factor in establishing worker status.
Key facts
Mr. Groom was a volunteer coastal rescue officer for over 35 years
He operated under a "Volunteer Handbook" and "Code of Conduct"
Some activities were unpaid, while others were paid upon submission of a claim
The EAT found he was a worker during periods when carrying out activities he could be paid for
A contract was formed each time he performed a paid activity, even if he didn't claim payment
The organisation's minimum attendance requirements also factored into the decision
Additional considerations
Organisations engaging volunteers should be aware of several other factors:
Written agreements: While having a volunteer agreement doesn't automatically create a contract, courts will examine the substance of the arrangement, including mutual obligations and control. Ensure that volunteer agreements clearly outline the nature of the volunteer role and explicitly state that there is no obligation to provide personal service or control similar to that of a worker.
Expense reimbursement: Reimbursing reasonable out-of-pocket expenses alone is unlikely to change volunteer status, but flat-rate or excessive payments could be seen as remuneration. If estimating expenses, estimates should be carefully considered to ensure they are not higher than what could realistically be incurred. HMRC's guidance on charity volunteers mentions travel to and from volunteering and the cost of care for dependents during volunteering as examples of such expenses.
Training: Providing training solely for the volunteer role is generally acceptable, but training that could be seen as a benefit in kind may suggest an employment relationship. According to HMRC's guidance on charity volunteers, training is not considered a 'benefit in kind' if: It is provided solely to enhance the volunteer's or intern's ability to perform their role; and, it is received during the course of the voluntary work. So it is important to limit training to what is necessary for the volunteer role.
Obligations and sanctions: A genuine volunteer typically can provide their time freely, come and go as they please, and not face sanctions for failing to perform duties.
National Minimum Wage (NMW): It is crucial to determine if the individual is a 'worker' based on the actual nature of the relationship, as this entitles them to the National Minimum Wage (NMW). Failing to pay the NMW can have severe consequences, including the requirement for the employer to pay six years of backdated wages and potential criminal charges for wilful neglect. Additionally, the employer could be publicly 'named and shamed' under the NMW Naming Scheme.
Regular Reviews: Regularly review the roles and agreements of volunteers to ensure that they do not inadvertently fall into the category of 'worker' under employment law. This includes checking for any changes in the nature of their activities or the benefits they receive.
This decision is crucial for employers who host volunteers, interns, or work experience placements. It highlights that while not all volunteers are considered workers, paying them more than their expenses might imply worker status and entitle them to protections.
Further reading
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