Employment status

‘Volunteer’ is not a term that is legally defined.  In practical terms volunteering arrangements can vary greatly, from being very informal, to being part of a highly formal structure.  What matters in legal terms here is whether or not there is a contract between the organisation and its volunteers and, if so, what the consequences of this are.

If a volunteer can demonstrate that they are in fact working under a contract, they would be entitled to protection under the Equality Act 2010, the Working Time Regulations 1998, and – unless they are exempt as explained below – would be eligible for the national living wage (or national minimum wage if they are under 25).

Read more about this in the national minimum wage section.

Depending on the nature of the contract they may even have access to full employment rights. There have been various cases in which volunteers have claimed to be a worker or an employee.

For there to be a contract the following features need to be in existence:

• Offer
• Acceptance
• Consideration (see below)
• An intention to create a legally binding relationship

A contract doesn’t always have to be written down or even agreed verbally. It’s a description of a relationship, and even if it hasn’t been agreed that a contract will be created, the actual relationship between the people or organisations may be seen as being contractual.

‘Consideration’ in legal terms means something of value that is exchanged for the obligations given by the other party under a contract. It does not have to be a monetary payment, or of financial or high value. It could also include perks or benefits that have a value. This might include training that isn’t necessary to carry out the volunteer’s role.

Intent to create a legally binding relationship doesn’t have to be something either party has expressed or even considered – it could be implied from the circumstances.

One way of thinking about intent is to imagine the relationship from the point of view of someone outside. If it looks and feels as if a legally binding agreement has been made, a court or tribunal are likely to decide that there was intent.

If there is a contract, does it create a worker or employment relationship?

A ‘worker’ is a person who carries out work for someone else while under a contract to provide services personally. They are entitled to protections under the Equality Act 2010, the Working Time Regulations 1998 and the National Minimum Wage Act 1998. A typical example of a worker would be a casual worker. They work when they are needed: the employer does not have to offer work and the individual does not have to take it if offered.

An ‘employee’ is a person carrying out work under a ‘contract of service’, and therefore entitled to the full range of employment protections.  All employees are also workers, but not all workers are employees.

The concept of a contract of service has been shaped by common law (ie judgements from previous cases). A range of criteria to define this employment relationship (often called ‘tests’) has been developed. A test that gives a basic indication of employment is mutuality of obligation.

Mutuality of obligation

This test asks whether the organisation is obliged to offer work and the individual is obliged to do that work. If so, the relationship is seen to be a contract of service. A key factor is whether the individual has a right to refuse work.  The regularity with which work has been carried out may be an indicator of mutuality of obligation but it does not determine the question

This ‘test’ is important because it helps to tell the difference between a contract of service (a contract of employment, eg employees) and a contract to personally provide services (a worker relationship, eg casual workers).

Volunteers working under a contract may be entitled to the same rights as workers, such as:

• being paid the minimum wage (if they are over school-leaving age)
• being covered by the worker provisions of the Equality Act 2010
• protection from detriment for whistleblowing under the Public Interest Disclosure Act 1999.
• working no more than 48 hours per week on average (and all other rules in the Working Time Regulations 1998)
• having five to six weeks’ paid holiday each year (pro rata).

As well as these rights, employees (people working under a contract of service) are covered by employment legislation and this includes:

• belonging to a trade union (and all accompanying rights, such as time off for union activities)
• particular protections under Health and Safety legislation
• receive statutory sick pay
• not be unfairly dismissed
• protection under the Equality Act.