This page contains information that has appeared on Sandy Adirondack's legal update website for voluntary organisations at www.sandy-a.co.uk/legal.htm. For current updates, including potential changes that are in the pipeline, see the legal update website.

These websites for each chapter update the 2nd edition of The Voluntary Sector Legal Handbook by Sandy Adirondack and James Sinclair Taylor (Directory of Social Change, 2001). The websites are not intended as a comprehensive update and should not be treated as such.

To order a copy of The Voluntary Sector Legal Handbook, print out the order form at www.sandy-a.co.uk/bookserv.htm or send an email order by clicking . It costs £50 for voluntary organisations or £80 for others, plus 10% p&p. We expect the third edition to be published in 2007.

The information here covers the law applicable to England and Wales. It may not apply in Northern Ireland and/or Scotland. These news items are not a full or definitive statement of the law and are not intended as a substitute for professional legal advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be taken by the author.

Chapter 35
VOLUNTEERS

PUBLICATIONS ON LEGAL ASPECTS OF VOLUNTEERING

Updated 19/11/05. This information updates chapter 35 in The Voluntary Sector Legal Handbook 2nd edition.
Volunteering England has updated many of its briefings, including national minimum wage, expenses, volunteers on state benefits, who is allowed to volunteer, volunteers from outside the UK, volunteer health and safety, volunteer drivers, insurances, and sample volunteer agreements. A full list of all their briefings is at www.volunteering.org.uk/missions.php?id=282.

Volunteers and the Law by Mark Restall, covering all of the above topics and more, was published by Volunteering England on 6 June 2005, price £15. It can be ordered via www.sandy-a.co.uk/bookserv.htm. Members of Volunteering England can get a discount by ordering direct from the publisher, and some volunteer centres have free copies for distribution. A free eight-page summary of the book is on the Volunteering England website at www.volunteering.org.uk/law.pdf.

PUBLICATIONS FROM VOLUNTEERING ENGLAND

Added 15/4/07. This information adds to chapter 35 in The Voluntary Sector Legal Handbook 2nd edition.
Volunteering England's excellent 64-page Volunteers and the Law (£15 in hard copy) is now free to download from their website, along with an eight-page summary.

Among the many other downloadable publications is Risk Toolkit: How to take care of risk in volunteering, which sets out the potential risks faced by organisations and volunteers, and how to implement sensible risk assessment and risk management strategies.

For access to these and other publications, go to www.volunteering.org.uk and select Resources for managing volunteers / Publications / Free publications.

COMPACT CODE ON VOLUNTEERING

Added 24/10/05. This information updates chapter 35 in The Voluntary Sector Legal Handbook 2nd edition.
The revised Compact Code of Good Practice on Volunteering was issued on 17 October 2005. The code makes clear that government departments, including executive agencies and other key decision makers, and voluntary organisations should consider the possible impacts of their decisions on volunteers. The code can be downloaded at www.thecompact.org.uk/C2B/document_tree/ViewACategory.asp?CategoryID=45 or can be ordered from 020 7520 2454.

WILL THERE BE A LEGAL DEFINITION OF VOLUNTEER?

Added 8/6/05. This information adds to s.35.1 in The Voluntary Sector Legal Handbook 2nd edition.
Because there is no general legal definition of volunteer, the word is used in many ways and legal confusion can arise. For example, volunteers are increasingly trying to show in the employment tribunals that they are legally working under a contract and are therefore employees, rather than volunteers, and are entitled to employment rights (see volunteer contracts). The government is using the term "volunteer" to refer to people on the proposed national community service, under which 16 to 25-year olds who "volunteer" full time would receive a £60 per week allowance to help cover expenses. (The Sandy Adirondack casuistry prize will be awarded to anyone who can satisfactorily define the difference between "allowance to help cover expenses" and "pay significantly below minimum wage".) The statutory definition of volunteer in relation to entitlement to free criminal record checks is different from the definition of voluntary worker in relation to (lack of) entitlement to minimum wage. To try to clarify matters, the Home Office is considering whether there should be a statutory definition of volunteer.

However any definition would have to take into account:

• Employment law--does a £60 per week allowance, other payment that is not genuine reimbursement, or allowing perks or benefits that are not necessary for the work create a contract entitling the person to equal ops protection, minimum wage and other workers' rights--and if not, why not? If the person is working on a regular basis does the payment or perk create a contract of employment entitling the person to the full range of employment rights--and if not, why not?
• Tax law--does the payment or perk count towards taxable income--and if not, why not?
• Benefits law--how does an allowed payment affect entitlement to means-tested benefits such as housing benefit or income support?
• Charity law--is it a lawful payment or perk if the organisation is a charity and the volunteer is also a trustee of the charity?
• Immigration law--can the payment or perk be provided to a volunteer who is an asylum seeker?
• Copyright law--is creative work produced by the person £in the course of employment" and therefore the intellectual property of the organisation, or is it produced outside employment and therefore the intellectual property of the individual?

MILEAGE REIMBURSEMENT RATES

Updated 11/7/04. This information updates s.27.4.5.1 and s.35.2.1.2 in The Voluntary Sector Legal Handbook 2nd edition.
From 6 April 2002 the tax rules on reimbursement for vehicle use changed. "Authorised mileage rates" were replaced by "approved mileage allowance payments" (AMAP). The rates that can be reimbursed free of tax and national insurance during tax year 2004/5 remain:

• Cars and vans, up to 10,000 business miles: 40p per mile (regardless of engine size)
• Cars and vans, additional business miles: 25p per mile
• Motorcycles: 24p per mile
• Bicycles: 20p per mile

APPEAL TRIBUNAL DECISIONS ON
VOLUNTEER CONTRACTS

Updated 13/6/05. This information updates s.35.3.2.3 in The Voluntary Sector Legal Handbook 2nd edition.
In some employment tribunal decisions, volunteers have been held to be working under a contract, and where the volunteer worked regular hours or had to make a fixed commitment (e.g. "you must volunteer for at least six months"), the contract was held to be a contract of employment. But in other similar cases, tribunals said there was no contract. This created a huge grey area.

At last the situation is getting clearer, with employment appeal tribunal decisions (which set a precedent) on 17 November 2003 in the case of South East Sheffield Citizens Advice Bureau v Mrs J Grayson and on 24 May 2004 in Mr A Melhuish v Redbridge Citizens Advice Bureau.

Based on these decisions, volunteers are unlikely to be working under a contract provided they:

• receive only proper reimbursement of genuine expenses;
• receive only training etc necessary to do the work, rather than training or other benefits that are not necessary for the work;
• do not receive perks or anything else that could be seen as consideration; and
• are not subject to sanctions if they decide not to work.

THREAT TO CHILDCARE AND OTHER CARE COSTS FOR VOLUNTEERS

Added 14/12/07. This information updates s.35.3.3 in The Voluntary Sector Legal Handbook 2nd edition.
In their response to the recent consultation on national minimum wage (NMW) for voluntary workers, the Department for Business, Enterprise and Regulatory Reform said (para 2.14) that "reimbursement of childcare expenses represents a significant benefit in kind and as such would change the nature of the relationship between voluntary worker and qualifying organisation".

The National Minimum Wage Act 1998 s.44 says that 'voluntary workers' — volunteers who receive any money or benefit at all — are entitled to minimum wage unless the only money they receive for their volunteering is reimbursement of expenses incurred in carrying out their duties and, in some very specific situations, subsistence payments to cover meals and living expenses; and/or the only benefit in kind they receive from their volunteering is training whose sole or main purpose is to improve the work they do as a volunteer, and subsistence or accommodation reasonable for the work.

This is clearly a very narrow definition but in practice HM Revenue & Customs, who enforce minimum wage, have taken a pragmatic view, have not interpreted the law rigidly, and have not treated reimbursements for lunch, childcare etc as entitling the person to minimum wage. But now BERR is saying that reimbursement for care costs is a benefit, and will entitle volunteers who receive it to minimum wage.

The Association of Volunteer Managers (AVM) has launched a campaign to defend the right of volunteers to be reimbursed care costs without gaining entitlement to minimum wage. I am publicising this campaign and urge you to support it, because I think it is such an important issue for organisations which use volunteers.

Organisations such as AVM and Volunteering England argue that care costs are a legitimate expense, and not a benefit or perk. Organisations should be able to reimburse the costs of any carer who has had to buy in care while they are volunteering. There is absolutely no legal precedent for BERR’s comment; in fact it contradicts recent legal rulings on the employment status of volunteers, and the Department for Work and Pensions' views on volunteer expenses for volunteers receiving state benefits.

We feel it is important to let BERR know that they have got it wrong, and that reimbursement of care costs is not a benefit. If organisations were to stop reimbursing care, this would act as a significant barrier to carers on low incomes who want to offer time to their community or to causes they support.

If you are concerned about this, please contact John Hutton (Secretary for State for BERR), huttonj@parliament.uk, and Helen Dwyer (the person dealing with the consultation at BERR), helen.dwyer@berr.gsi.gov.uk. There is a sample letter on the AVM website at tinyurl.com/yqg8uq.

BERR's response to the consultation is at www.berr.gov.uk/files/file42602.pdf.

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