SANDY ADIRONDACK
Legal and governance training and consultancy
for the voluntary sector
OTHER CHAPTERS
I. THE ORGANISATION

Ch.1: Setting up an organisation
Ch.2: Unincorporated organisations
Ch.3: Incorporated organisations
Ch.4: Charitable status, charity law & regulation
Ch.5: The organisation's objects
Ch.6: The organisation's name
Ch.7: The governing document
Ch.8: Registering as a charity
Ch.9: Branches, subsidiaries & group structures
Ch.10: Changing legal form
Ch.11: Collaborative working, partnerships and mergers
II. GOVERNANCE
Ch.12: Members of the organisation
Ch.13: Members of the governing body
Ch.14: Officers, committees & sub-committees
Ch.15: Duties & powers of the governing body
Ch.16: Restrictions on payments & benefits
Ch.17: The registered office & other premises
Ch.18: Communication & paperwork
Ch.19: Meetings, resolutions & decision making
Ch.20: Assets & agency
Ch.21: Contracts & contract law
Ch.22: Risk & liability
Ch.23: Insurance
Ch.24: Financial difficulties & winding up
III. EMPLOYEES, WORKERS, VOLUNTEERS & OTHER STAFF
Ch.25: Employees & other workers
Ch.26: Rights, duties & the contract of employment
Ch.27: Model contract of employment
Ch.28: Equal opportunities in employment
Ch.29: Taking on new employees
Ch.30: Pay & pensions
Ch.31: Working time, time off & leave
Ch.32: Rights of parents & carers
Ch.33: Disciplinary matters, grievances & whistleblowing
Ch.34: Termination of employment
Ch.35: Redundancy
Ch.36: Employer-employee relations
Ch.37: Employment claims & settlement
Ch.38: Self employed & other contractors
IV. SERVICES & ACTIVITIES
Ch.40: Health & safety
Ch.41: Safeguarding children & vulnerable adults
Ch.42: Equal opportunities: goods, services & facilities
Ch.43: Data protection & use of information
Ch.44: Intellectual property
Ch.45: Publications, publicity & the internet
Ch.46: Campaigning & political activities
Ch.47: Public events, entertainment & licensing
V. FUNDING & FUNDRAISING
Ch.48: Funding & fundraising: General rules
Ch.49: Fundraising activities
Ch.50: Tax-effective giving
Ch.51: Trading & social enterprise
Ch.52: Contracts & service agreements
VI. FINANCE
Ch.53: Financial procedures & security
Ch.54: Annual accounts, reports & returns
Ch.55: Auditors & independent examiners
Ch.56: Corporation tax, income tax & capital gains tax
Ch.57: Value added tax
Ch.58: Investment & reserves
Ch.59: Borrowing
VII. PROPERTY
Ch.60: Land ownership & tenure
Ch.61: Acquiring & disposing of property
Ch.62: Business leases
Ch.63: Property management & the environment
VIII. BACKGROUND TO THE LAW
Ch.64: How the law works
Ch.65: Dispute resolution & litigation
UPDATED INFORMATION FOR CHAPTER 39:
THE RUSSELL-COOKE
VOLUNTARY SECTOR LEGAL HANDBOOK

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 3rd edition of The Russell-Cooke Voluntary Sector Legal Handbook by James Sinclair Taylor and the Charity Team at Russell-Cooke Solicitors, edited by Sandy Adirondack (Directory of Social Change, 2009). The websites are not intended as a comprehensive update and should not be treated as such.

To order a copy of The Russell-Cooke 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 £60 for voluntary organisations or £90 for others, plus 10% p&p.

To avoid spamming, an email address is not given on screen. If you can't see the word 'here' or have trouble sending an email by clicking on it, the address is bookservice at sandy-a.co.uk, with the spaces and 'at' replaced by the @ symbol.

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 39
VOLUNTEERS


The items below formerly appeared on the legal update website for voluntary organisations and are archived here. The content may be out of date and links may not work. For current updates to the chapter, see the legal update website for voluntary organisations at www.sandy-a.co.uk/employment.htm.


VOLUNTEERING ENGLAND (LACK OF) RESOURCES

Added 14/11/10. This information updates chapter 39 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Volunteering England — once an excellent source of information on legal (and all other) aspects of volunteering for managers and governing bodies of all volunteer-using organisations — has since November 2009 made its telephone and online information service and its online good practice bank available only to VE members. Although membership is free for organisations with annual income under £30,000, I am hugely disappointed by this restriction on crucial information that is not easily available elsewhere. Apart from anything else, why should an organisation join when it has no way of assessing the quantity or quality of information to which it will have access?

In the absence of VE information unless you are a member, The Russell-Cooke Voluntary Sector Legal Handbook, in particular chapter 39, contains detailed information about most legal aspects of volunteering. Organisations which do not have a copy may be able to consult it at their local council for voluntary service or similar infrastructure support organisation.

Fortunately, VE does still have basic information on some of the most common legal questions — who is allowed to volunteer, volunteers on state benefits and volunteers from overseas — in the "I want to volunteer" section of VE's website, at www.volunteering.org.uk.

More usefully, Wales Council for Voluntary Action's resources for volunteer managers, including information sheets and model policies, are still freely available via tinyurl.com/3yh2uz6. Good practice is the same in Wales as elsewhere, and nearly all relevant aspects of the law — minimum wage, tax, volunteers on benefits, volunteers from overseas, discrimination, working with children or vulnerable adults, health and safety, volunteers and fundraisers etc — are the same in England and Wales, although some may be different in Scotland and Northern Ireland.


"FIT AND PROPER PERSON" CERTIFICATE FOR VOLUNTEERS?

Updated 22/4/12. This information would create a new sub-section 39.1.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Christopher Chope MP (Con, Christchurch) has tabled the Volunteering Bill in Parliament, intended to promote volunteering and enable potential volunteers to self-certify that they are a fit and proper person for their activities. The certificate would be a signed declaration by a potential volunteer stating that he or she has no unspent convictions. (An unspent conviction is one which under the Rehabilitation of Offenders Act 1974 is still "live", i.e. is a recent conviction, or one which is so serious it will never become spent.) For volunteers aged under 18, the certificate would be countersigned by a parent or guardian.

A potential volunteer who provides a certificate would not need a criminal record check even for work with children and vulnerable adults. "Volunteer" is not defined in the bill.

The fit and proper persons certificate as defined under this bill should not be confused with the certificate of the same name which HM Revenue and Customs now requires for trustees and managers of charities which recover tax on gift aid donations or claim other tax reliefs and exemptions, to show they are "fit and proper persons" to manage the charity's funds.

Volunteering England has said, "Whilst we welcome the move to reduce the red tape surrounding volunteering, we do not believe the proposals in Mr Chope's private member's bill are the answer. Safeguarding is an important issue, and we hope that reforms to the current CRB system within the Protection of Freedoms Bill will strike the appropriate balance ensuring vulnerable people are protected whilst making sure volunteers aren't put off." For the same reasons, the government does not support the bill.

The bill had its second reading in the House of Commons on 10 June 2011, with the second reading resumed in the new parliamentary session on 3 February 2012.

The bill is available at services.parliament.uk/bills/2010-12/volunteering.html.

Update 1/5/12: The Bill failed to complete its passage through Parliament before the end of the 2010-12 session, so will make no further progress.


VOLUNTEER RIGHTS CALL TO ACTION

Updated 22/3/11. This information updates s.39.1.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Following a number of high profile (well, high profile within the voluntary sector) cases involving clear breakdowns of communication between managers or management committees/boards and volunteers, Volunteering England convened in November 2009 an independent volunteer rights inquiry to look into and make recommendations about the treatment of volunteers and the rights volunteers have if they are mistreated by their organisation.

Its interim report, published in July 2010, was depressing reading. Possible solutions identified in the report include boards appointing a trustee with responsibility for volunteering; an independent redress mechanism such as an arbitration scheme, volunteer complaints commission or ombudsman; codes of conduct; development of Investing in Volunteers and/or Investing in People to further improve volunteer management; good practice information available on websites; and a review of legislation to ensure volunteers are not systematically disadvantaged or discriminated against.

Following feedback on the interim report and the suggested recommendations, the inquiry issued a call to action, the "3R Promise", on 2 March 2011. This asks organisations to commit to getting it right, achieving reconciliation, and accepting responsibility in resolving conflicts with volunteers. The 3R Promise is at www.volunteering.org.uk/3RPromise, and the interim report can be accessed via tinyurl.com/34mnuxw.


AVOIDING JOB SUBSTITUTION

Added 22/4/12. This information updates s.39.1.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Volunteering England, in association with Locality, the National Association for Voluntary and Community Action and the National Council for Voluntary Organisations, published on 18 April 2012 a guide to help organisations ensure they do not substitute paid staff posts with volunteers.

In my view, this aspiration is understandable and laudable but flawed. With the level of cuts that voluntary organisations are facing, there will inevitably be situations where either volunteers will have to replace paid staff, or essential services will no longer be provided for vulnerable individuals and for communities in general.

I would have preferred it if the guidance had acknowledged this, and had said the intention was to avoid job substitution or, where it is unavoidable, to ensure it is done in the most effective way. I do not find statements such as "organisations should identify activities for volunteers that would support and complement the work of paid staff" particularly helpful, when the reality for some organisations is that many or most or even all of the paid staff are or soon will be gone.

One of the scenarios envisaged in the guidance is where an organisation decides to cut jobs and recruit volunteers to fill the gaps. Where there is such a direct replacement of paid staff, the guidance says it is likely there would be objections from staff and trade unions, and volunteers would not want to be involved. But what about where the organisation feels it has no choice but to cut jobs and replace them with volunteers?

At the other extreme, the guidance says that when a service has been withdrawn due to funding cuts, members of its community or service users may volunteer themselves to run services which meet similar needs. The guidance seems to envisage that following a review of volunteer roles, this service would turn out to be significantly different from the one delivered by paid staff, so would not involve job substitution.

The guidance adds, "Alternatively, a local authority may decide to withdraw funding from services where they think volunteers would be likely to step in or where they believe it ought to be a community and voluntary responsibility rather than a publicly funded service. Or a local authority may commission services from a new organisation. In such cases it may be difficult to anticipate or determine the extent to which jobs are being replaced or displaced."

In each case the guidance emphasises the importance of reviewing the organisation's services, income and costs, as well as its relationship with the volunteer group, the kind of roles that can be expected of volunteers, and the resources or training required to support them. This is sensible advice regardless of whether the change is or is not going to involve some level of job substitution.

Processes outlined in the guidance are consulting with trade unions, staff and the community on key principles for volunteer involvement; creating a volunteering policy, defining the procedure for creating new roles and solving problems; agreeing roles and responsibilities of volunteers; and creating opportunities for staff and volunteers to better understand each others' roles.

Unfortunately the guidance does not, in my view, focus enough on the practical and resource implications if paid staff do have to be replaced by volunteers. The reality is that volunteers are in many cases going to be taking on work that is very similar, or in some cases maybe even the same as, paid staff have done. A checklist of basic issues — "if you do go down this route, these are the things you need to think about" — would have been helpful. Such a checklist could have served as a reminder that involving volunteers is not cost or resource free and that someone, whether paid or unpaid, is going to have to recruit, train, manage, support and coordinate them.

The four-page guidance can be accessed on the Voluntary England website via tinyurl.com/cqvvocz. A press release is at tinyurl.com/co8qn6n.


CHARTER ON RELATIONS BETWEEN PAID STAFF AND VOLUNTEERS

Added 14/11/10. This information updates s.39.1.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Volunteering England and the Trades Union Congress agreed in December 2009 a "charter for strengthening relations between paid staff and volunteers". Most is general good practice, but items of specific relevance in this era of cuts, competition and the Big Society are:

  • the involvement of volunteers should complement and supplement the work of paid staff, and should not be used to displace paid staff or undercut their pay and conditions of service;
  • the added value of volunteers should be highlighted as part of commissioning or grantmaking process but their involvement should not be used to reduce contract costs;
  • there should be recognised machinery for the resolution of any problems between organisations and volunteers or between paid staff and volunteers;
  • in the interests of harmonious relations between volunteers and paid staff, volunteers should not be used to undertake the work of paid staff during industrial disputes.
The charter is at www.tuc.org.uk/workplace/tuc-17329-f0.cfm.

ISSUES IN REIMBURSING VOLUNTEER EXPENSES

Added 14/11/10. This information s.39.2.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Low Incomes Tax Reform Group (LITRG), an initiative of the Chartered Institute of Taxation, published a report in April 2009 explaining the complex legislative framework surrounding reimbursement of volunteer expenses. The Department for Work and Pensions, says LITRG, worries that reimbursements might have to be taken into account for benefits purposes; HMRC worries that reimbursements could be disguised income and should be subject to tax; the Department for Business, Innovation and Skills worries that reimbursements could be disguised pay to avoid having to pay national minimum wage. And there are additional issues for asylum seekers, charity trustees, tax credits, volunteers who receive benefits in kind or so-called honoraria, or are self-employed...

The report recommended formation of a working group of key organisations to discuss the issues, with the objective of simplification; the public services website Direct.gov.uk should coordinate the relevant information on its website into a coherent whole; and volunteers should be able to donate their reimbursement back to the charity or community amateur sports club for which they are volunteering, without the current paperwork.

There is no further information about the report on the LITRG website, so it may have disappeared with the election in May 2010. But it remains a clear, detailed explanation of the relevant legislation, case law and guidance, and is well worth reading if you are concerned about these issues.

The report can be accessed via tinyurl.com/2a8vl9s, with a short press release at www.litrg.org.uk/News/2009/volunteers-expenses-in-the-spotlight.


PAYE ON PAYMENTS TO CASUALS

Added 23/6/13. This information updates ss.30.4 & 39.3.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Even for payments to workers who are referred to as casuals or volunteers, an organisation is likely to have to operate PAYE if the person receives more than the national insurance threshold (£109 per week in 2013-14) from the organisation, or has taxable income from other sources and receives more than £1 per week from the organisation. If HM Revenue & Customs carries out a PAYE compliance check, which it can do at any time, and discovers that PAYE is not being operated properly, the organisation can be required to pay tax and national insurance dating back six years, as well as interest and penalties.

This is not new, but has been in the media recently after the Daily Telegraph published on 28 May 2013 an article about HMRC carrying out checks on local cricket clubs [see tinyurl.com/p6kpswo], which was followed by articles in the Daily Mail and other media. The articles highlighted Sawbridgeworth Cricket Club, an amateur club with £21,000 annual income, which was charged £14,400 in back tax and £3,500 in interest and penalties. After negotiation HMRC waived penalties, and the club made arrangements for staged payments which will be covered through fundraising events and an interest-free loan.

HMRC looks for payments made "cash in hand", typically to cleaners, bar staff and similar workers, and flat rate or lump sum "expenses" paid to workers, including those referred to as volunteers, which are not linked to identifiable out of pocket expenditure. In the Sawbridgeworth case, another issue was payments of £125 to club members who provided lodging and meals to foreign players who served as coaches during the 20-week cricket season. For other clubs, payments to foreign players and other players could be an issue.

In response to the media attention on cricket clubs, the England and Wales Cricket Board issued guidance on HMRC PAYE enquiries into cricket clubs in May, This guidance, along with guidance on other tax issues, is at tinyurl.com/kjfmqqx. It is relevant not only to cricket clubs, but also to other sports clubs and any other organisation which may not be operating PAYE properly.

A common mistake for organisations, especially those that do not have employees and are thus not aware of PAYE rules, is to think that because they are charities or registered community amateur sports clubs and are exempt from having to pay corporation tax on their profits, they are also exempt from PAYE tax and national insurance. But PAYE tax and NI are taxes on an individual's income, not on an organisation's profits, and there is no exemption for charities or CASCs.

For general information about tax and national insurance, see www.hmrc.gov.uk.


SUPREME COURT CONFIRMS VOLUNTEERING IS NOT AN 'OCCUPATION'

Updated 22/6/13. This information updates s.39.4.2.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
A number of cases have confirmed that under UK legislation, volunteers can claim workers' rights (discrimination, minimum wage, working time etc) only if they can show they are working under a contract, and can claim employment rights such as unfair dismissal only if they can show it is a contract of employment.

A CAB volunteer took a different approach in the case of X v Mid Sussex Citizens Advice Bureau & others. X was a CAB volunteer with a long-term health condition who was asked to leave, and claimed disability discrimination. She said the Disability Discrimination Act 1995 (now replaced by the Equality Act 2010) implemented the European Equal Treatment Directive, which prohibits discrimination in employment and in access to employment and occupation. X argued that volunteering should be treated as an occupation and is therefore covered by the equal treatment directive, and that volunteering is a method by which the CAB recruits employees and therefore comes within the directive's "access to employment" provisions.

In October 2009 the employment appeal tribunal confirmed the employment tribunal's decision that volunteering does not constitute an occupation. The EAT also said that the CAB did not treat volunteering as a necessary requirement for employment and volunteers were not given preference in selection for employment, so the claimant was not being discriminated against in access to employment or occupation. The court of appeal upheld this decision on 26 January 2011, saying volunteering would be an occupation only if the volunteer's work was vocational training or it was remunerated.

X asked the court of appeal for leave to take the case to the supreme court. This was refused, but on 1 August 2011 the supreme court granted permission for the appeal. This took place on 31 October and 1 November 2012, with X asking the supreme court to refer the case to the European court of justice. The supreme court handed down its decision on 12 December 2012, upholding the EAT and court of appeal decisions that volunteers are not protected by the equal treatment directive, and saying it was not necessary to refer the case to the European court of justice.

UK equality legislation covers employees, and others such as casual workers, agency workers and self employed workers who have a contract to provide a service personally. This contract might be written, but it could also be implied from other circumstances where there is an exchange of consideration (money or something else of value given or promised in return for work) and where there are mutual obligations between the parties. Such circumstances could include where a so-called volunteer:

  • receives payment other than reimbursement of genuine out of pocket expenses;
  • or receives perks or benefits that are not necessary for the work they are carrying out;
  • or receives benefits that are necessary for the work, such as training, where there is an obligation to work for a specified minimum time in return for the training;
  • or where there is a requirement to work for specific hours or specific dates, and there is a disciplinary or other sanction for failing to do so. A contract is not created simply by the organisation requesting the volunteer to work specific times, provided it is clear that the volunteer can choose not to do so. Nor is a contract created by the organisation requesting that the volunteer lets the organisation know if they decide not to do the requested work, or are unable to do so because of illness etc.
Equality legislation also applies where volunteering is a prerequisite for employment, or where a volunteer is applying for employment.

Where there is a written agreement between the organisation and the volunteer, this is not necessarily a contract entitling the volunteer to workers' or employment rights. A contract is based on the reality of the relationship between the organisation and individual, rather than on whether there is or is not anything in writing.

Volunteering England's guidance on volunteer agreements which set out reasonable expectations rather than creating contractual obligations is at tinyurl.com/msznu9u.

Many volunteers and volunteer involving organisations believe that volunteers should have some or all of the same rights as employees, especially in relation to discrimination law. But the view of Volunteering England and many other organisations is that giving volunteers the same legal status as employees would fundamentally undermine the nature of volunteering and be harmful to the ethos of volunteering, as well as creating significant practical costs for charities and other volunteer involving organisations. Volunteering England's view is that volunteer involving organisations should commit themselves to good management practice through the "3R promise" that was developed by the independent volunteer rights inquiry in 2009-10. This asks organisations to commit to getting it Right, achieving Reconciliation, and accepting Responsibility in resolving conflicts with volunteers. Information about the 3R promise and how to sign up for it is at tinyurl.com/ktfs6ux.

The supreme court decision is at www.bailii.org/uk/cases/UKSC/2012/59.html.
The earlier EAT and court of appeal decisions are at www.bailii.org/uk/cases/UKEAT/2009/0220_08_3010.html and www.bailii.org/ew/cases/EWCA/Civ/2011/28.html.

In another case that was headed for the European court of justice, Revd M Masih v Awaz FM, Masih was a Church of Scotland minister and for six years had been a volunteer co-presenter of a weekly programme on Awaz FM, a community radio station in Glasgow. When the station management terminated the presenters' voluntary engagement because a programme was allegedly not balanced enough, Masih claimed discrimination on the basis of religion. Rather than deciding the case, the Glasgow employment tribunal decided on 26 August 2009 to ask the European court of justice for a preliminary ruling on whether Masih's relationship with the radio station fell within "employment and occupation" under the equal treatment directive.

An Equal Opportunities Review summary of the tribunal case and the reasons for the reference to the ECJ is at www.eortrial.co.uk/default.aspx?id=1127284.

Awaz FM appealed to the Scottish employment appeal tribunal against the order for a reference. This was due to be heard in June 2010, but was stayed pending the court of appeal decision in X v Mid Sussex CAB. Following that decision, Masih withdrew his claim.

For summaries and articles about cases, do a Google search on key words in the case name or content.


PAID "VOLUNTEER" HELD NOT TO BE WORKING UNDER A CONTRACT

Added 29/5/11. This information updates s.39.4.2.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
As indicated in the item above, volunteers can claim workers' rights (discrimination, minimum wage, working time etc) only if they can show they are working under a contract personally to do the work, and can claim employment rights such as unfair dismissal only if they can show the contract they are working under is a contract of employment.

At its simplest, a contract nearly always exists if a person is paid for work, and it is a contract of employment if one party is obliged to provide work to an individual, and the individual is obliged to do it.

A recent case involved an army cadet force (ACF) adult instructor, described in his terms of service as a "voluntary youth worker" but who would be paid for working up to 28 training days per year. Training days above 28 would be paid only if authorised by the ACF cadet commandant.

The employment appeal tribunal said on 11 April 2011 that the instructor could not bring a claim under disability discrimination legislation because there was no obligation on the ACF to provide training days and no obligation on him to accept them if they were offered, and he was paid only for the days he worked.

Having read his terms of service as set out in the case transcript, it seems to me perfectly clear that there was no mutuality of obligation and therefore it was not a contract of employment, but that he was nonetheless working under a contract under which if paid work was offered and he accepted it, he would have to do it personally. I therefore disagree with the EAT's decision, and think the instructor was entitled to bring a disability discrimination case. But hey, what do I know; I'm just a trainer and consultant. (Just don't offer me "up to 10 days training in the next year", then try to say that I'm not working under a contract if you offer and I accept some or all of those days!)

The (flawed, in my view) decision in Breakell v West Midlands Reserve Forces' and Cadets' Association named as Shropshire Army Cadet Force is at www.bailii.org/uk/cases/UKEAT/2011/0372_10_1104.html.


CHILDCARE AND OTHER CARE COSTS AND NATIONAL MINIMUM WAGE

Updated 16/2/09. This information is included in s.39.4.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The National Minimum Wage Act 1998 s.44 said that 'voluntary workers' — volunteers who receive any money or benefit — 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, did not treat reimbursement of expenses incurred in order to volunteer as entitling the person to minimum wage. But as part of a review of minimum wage in 2007, the Department for Business, Enterprise and Regulatory Reform said that reimbursement for such costs, in particular childcare and other care costs, is a benefit and should entitle volunteers who receive it to minimum wage.

Following a campaign by volunteer-using organisations against BERR's approach, s.14 of the Employment Act 2008 amended s.44 of the NMWA from 13 January 2009, to make clear that reimbursement of expenses to enable a person to volunteer does not trigger entitlement to minimum wage. This includes travel to the place of volunteering, and childcare and other care costs.

The Employment Act 2008 is at www.opsi.gov.uk/acts/acts2008/ukpga_20080024_en_1.


VOLUNTEERS WITHOUT SPONSORSHIP CERTIFICATE NOT ADMITTED TO U.K.

Added 22/3/11. This information updates s.39.6.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Under the points-based immigration system (PBS), people from outside the European Economic Area (EEA) who are entitled to work or study in the UK under PBS tiers 1-5 and their dependents can volunteer in the UK. In addition, tier 5 (temporary workers) includes provision for charity workers, who can do unpaid voluntary work in the UK for a charity for up to 12 months provided they are sponsored by a registered charity; they receive only accommodation, meal and a living allowance as allowed under the minimum wage legislation; they do not remain in the UK for more than 12 months; and they meet certain other requirements.

A case from early 2009, which has only recently been drawn to my attention (thanks Mark) shows how this rule is enforced. In March 2009, 11 volunteers from the US who had raised their own funding to travel to Edinburgh and work for 10 days in homeless hostels there, were not allowed into the UK because the Scottish church group that had arranged the visit was not registered with the UK Border Agency as a sponsor. The Scottish group had applied and paid to become a sponsor, but the application had not been processed in time for the group to issue the necessary certificates of sponsorship to the volunteers before they arrived.

Further details are in a Sunday Times article at www.timesonline.co.uk/tol/news/uk/scotland/article5864071.ece


VOLUNTEERING BY ASYLUM SEEKERS

Added 12/11/13. This information updates s.39.6.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Following a campaign by Refugee Action that was supported by the National Council for Voluntary Organisations, the Home Office revised its guidance on 28 October 2013 to make clear that asylum seekers can volunteer for public sector bodies as well as voluntary organisations, and that it is lawful for refused asylum seekers to volunteer.

Asylum seekers have been able to volunteer for registered charities, other voluntary organisations or organisations that raise funds for them, but this has now been extended to include volunteering for public sector bodies. The rules are the same as for voluntary sector volunteering: the volunteer must receive no payment other than reimbursement for genuine expenditure on fares or meals during volunteering; there must be no arrangements between the organisation and individual that would create a contractually binding obligation on the volunteer; the volunteer must provide a service for the organisation; and the volunteering must not be for a role that would normally be filled by a paid worker.

In relation to refused asylum seekers, previous Home Office guidance said it was unlawful for them to volunteer, and Refugee Action has been aware of individuals being threatened with imprisonment and fines unless they stopped volunteering. Now the Home Office has said that volunteering by refused asylum seekers is lawful, but that the government does not support their volunteering, it expects them to return to their home country, and volunteering will not delay their removal from the UK.

The changes are on p.47 in the revised Full guide for employers on preventing illegal working in the UK, issued on 28 October 2013 and available via tinyurl.com/p8jarxb. Previous Home Office guidelines, which included the detailed requirements for volunteering by asylum seekers, are on p.6 in Handling applications for permission to take employment, at tinyurl.com/oj54kbh. Refugee Action's press release about the changes is at tinyurl.com/p8jarxb.


GOVERNMENT ABANDONS EARNED CITIZENSHIP

Added 14/11/10. This information updates s.39.6.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Borders, Citizenship and Immigration Act 2009 s.41 contained provision for immigrants who participate in specified activities without pay to gain UK citizenship in two years less than those who do not volunteer. The Labour government planned to bring this "earned citizenship" into effect in July 2011, but the Home Office announced on 5 November 2010 that it will not be introduced.


VOLUNTEERING IS NOT A GENERALLY RISKY ACTIVITY!

Added 12/11/13. This information updates ss.39.8 & 39.9 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
"Volunteering is not a generally risky activity", states a one-page code of practice for volunteers issued in May 2012 by Volunteering England (now part of the National Council for Voluntary Organisations) and the Association of British Insurers.

The code is intended to give volunteers guidance on staying safe and when to ask for advice. It covers seven main points:

  • Take care in whatever you do.
  • Think about your safety and the safety of others around you.
  • Involve other people.
  • Ask for help and information.
  • Be clear about what you are and aren't responsible for.
  • Check you existing insurance policies to see what you are covered for.
  • If you are volunteering for an organisation you are probably covered by their insurance.
The full code is at tinyurl.com/86q8xzk.

INSURANCE FOR VOLUNTEER DRIVERS

Updated 12/11/13. This information updates s.39.10.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The confusion with some insurers not charging an additional premium to volunteers who use their own vehicles for volunteering, and other insurers charging, and some insurers charging in some circumstances but not others, has been eased by the Association of British Insurers' publication in August 2011 of a list of those insurers which generally do not charge an additional premium for volunteer drivers, and the exceptions when they do charge (for example some insurers do not charge if the driving is for a charity, but might charge if it is for a non-charitable club or society, and some may not cover additional named drivers).

At the time of publication the list included 54 insurance brands, representing 85% of the motor insurance market, but by September 2013 the number of brands had increased to 74, covering well over 90% of the market. If an insurer is not on the list, it presumably means they are likely to charge an extra premium for any volunteer driving.

For volunteer driving to be covered the policy must be a private car insurance policy for the policy holder's own vehicle, driven by the policy holder (unless the insurer allows volunteer driving by other named drivers to be covered without additional premium). The driver must not be reimbursed more than the HM Revenue & Customs authorised rate (see Tax & NICs on mileage reimbursement), and the vehicle must not be used for hire and reward.

The list also indicates whether it is or is not necessary for the policy holder to inform the insurer that the vehicle will be used for volunteering purposes.

Volunteer driving: The motor insurance commitment was the result of months of negotiation between Volunteering England, the Community Transport Association at the ABI. It is on the ABI website via tinyurl.com/4yjvhu5.


UPDATED INFORMATION FOR VOLUNTEERS ON BENEFITS

Added 14/11/10. This information updates s.39.11 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Jobcentre Plus issued in February 2010 a revised version of DWP1023 Volunteering while getting benefits. On a quick look, some of the changes from the previous edition I had (which may not have been the most recent previous edition) are:

  • Volunteering for "a social enterprise supporting your local community" and volunteering for a local business are included as examples of volunteering (p.4).
  • It is explicitly stated that benefits may be affected if a volunteer is "doing what someone else would normally be paid for" (p.4).
  • It is made clear that in some cases, the cost of some care expenses may be a legitimate expense (p.7).
  • The guidance on full-time volunteering now refers to subsistence allowance rather than volunteering allowance, and no longer gives an indicative amount (p.15). The previous edition I had said the allowance might be £50-£60 per week.
  • It is made clear that even people on jobseeker's allowance can volunteer full time, provided they are available for work and actively seeking work (p.16). However a subsistence allowance might affect benefits.
DWP1023 is at www.dwp.gov.uk/docs/dwp1023.pdf, and the Welsh version is at www.dwp.gov.uk/docs/dwp1023w.pdf.


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