Treating volunteers with care and respect is one of the most important duties of any Volunteer Involving Organisation (VIO). Being aware of the legal position around working with volunteers can help to ensure that everyone has a positive experience and that the correct safeguarding procedures are adhered to. 

The unique position of volunteers

It may come as a surprise to know that there is no legal definition of a volunteer, nor is there a law that defines the rights of volunteers. As such, volunteers aren’t protected against unfair dismissal and they don’t have the same rights to leave as paid employees. This unique situation means that volunteering can be both flexible and dynamic, however it can put people and organisations in a vulnerable position. There are also grey areas where the treatment of volunteers can inadvertently mirror that of paid staff and employment conditions, which can confuse matters further and sometimes even creates a case for legal action.  

Can a volunteer ever be considered an employee? 

Where a clear distinction between paid staff and volunteers isn’t made, it may be possible for a volunteer to prove that they were effectively ‘employed’, but were being treated less fairly than actual employees. There have been instances where volunteers successfully proved that an organisation implied a contract of employment. This meant that the volunteer should have been treated as an employee because they were working under employment-like conditions. All of the following actions by organisations have been shown to be problematic:

• Creating a ‘contract-like’ expectation to work, implied through the use of certain terminology (e.g. ‘contract’ instead of ‘volunteer agreement’, or ‘job description’ instead of ‘role description’). 
• Use of sanctions, for example a volunteer having to repay the cost of training for non-attendance. 
• Creating an expectation that volunteering will lead to paid employment. 
• Payments, gifts or rewards being issued with expectation, including flat rate expenses. It is important that a volunteer is not out-of-pocket for volunteering. All expenses should be like-for-like. 
• Use of policies and procedures that have not been adapted for volunteers. 

So how does an organisation distinguish between volunteers and paid employees?

Role descriptions: Separate role descriptions for volunteers should be created. These should be less formal than a job description and should provide more flexibility. 

Volunteer agreements: Volunteers should have a written and signed volunteer agreement with an organisation. This clarifies the role and expectations from both sides. It should never be called a contract and should also remain flexible. 

Celebrations and recognition, instead of payment: Other than out of pocket expenses, organisations must not pay volunteers or provide additional rewards that could be misconstrued as a regular or expected payment. Although it is important to celebrate volunteers (e.g. to put on a celebration event, which could include refreshments and prizes), rewards should be one-off and exceptional. 

Adapted policies and procedures for volunteers: Organisations should outline which of their policies and procedures volunteers must adhere to. Where possible, these should be adapted to show where volunteers fit and what their role is. Volunteers should not be included in employment related policies such as annual leave or maternity. 

Support and supervision: This should differ from the more formal employee structure. Support should be holistic and less task focused. 

Flexibility: Volunteers should not be held to the same standards of accountability as employees. Flexibility should be the default position and, where possible, roles should be adapted to enable volunteers to participate. 

Expenses: Reimbursing out-of-pocket volunteer expenses should be the norm for any volunteer involving organisation. However, additional payments, flat rate expenses, rewards or prizes given to volunteers aren’t a good way of doing this. If additional benefits are to be expected by the volunteer, then this can be viewed as a regular payment, potentially implying a contract of employment. Additional payments that are not a direct reimbursement of expenses are also potentially taxable and could affect any benefits a volunteer may be in receipt of.

The information on this page has been adapted from Volunteer Edinburgh’s ‘VolunteerWiki’ page, which is an excellent resource for VIO’s dedicated to all things volunteering related. Anyone can contribute! We thank our friends at Volunteer Edinburgh for allowing us to use this material.