Volunteer or employee – tips to ensure you understand the difference to avoid the pitfalls

Dementia Care
June 1, 2022

It’s Volunteers Week from 1-7 June. Kaine Davey, Trainee Solicitor at Napthens, explains the importance of having volunteers in care homes, but urges you to determine their legal status first, or a tribunal might consider them an employee.

The first week of June marks Volunteers Week, a week in which the UK celebrates volunteers and to say thank you to those who freely give their time to care for others.

It is also an important week to raise awareness of the benefits of volunteering to both individuals and workplaces. Volunteers in care homes are important as they can significantly impact the health and wellbeing of residents and allow them to develop new friendships and feel connected.

It also allows the organisation to develop relationships with the local community. Whilst volunteers are beneficial it’s important to ensure that the volunteer’s status is clear, and it is not that of a worker or employee.

It’s important to determine the legal status of a volunteer

The legal status of a volunteer is important, as it determines the extent of any statutory rights that they may have with the organisation. If the volunteer was actually found to be a worker or employee, they could be entitled to the same statutory rights as employees or workers, most importantly including the right to receive national minimum wage.

Here are some practical tips for organisations to reduce the risk of a legally binding contract:

  • Provide the individual with a volunteer agreement, it is advised that agreements are short, informal, flexible, and phrased in terms of hopes and expectations rather than obligations
  • Avoid making payments to volunteers that could be construed as wages. Organisations can reimburse volunteers for their expenses, but these should be actual expenses occurred that are in connection with their duties and ideally reimbursed against receipts
  • Take a cautious approach as to what extent you are reimbursing volunteers or providing perks, rewards, or gifts, as these could be construed as wages
  • Reduce the obligations on the volunteer and allow the volunteer the ability to refuse tasks and allow them to choose when to work. It is important that volunteers are not managed in the same way as employees and workers
  • Have clear policies for dealing with problems and grievances fairly, this should also reduce the likelihood of disputes with volunteers

 Be clear about the role of a volunteer in your workplace

It is important to note that merely having a written agreement with a volunteer will not itself guarantee that there is no employment relationship. The tribunals will instead look to the reality of the relationship between the organisation and volunteer. Therefore, it is important that organisations are clear about their obligations towards the volunteers and ensure that there are cautious to ensure the volunteer does not acquire legal status.

If you have any queries or are in need of specific advice in relation to any employment law query, please contact a member of the Napthens Employment Team who are able to offer 30 minutes of free advice to QCS members.

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Kaine Davey

Napthens LLP - Employment Law Adviser

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