Employment status

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

An ‘employee’ is someone carrying out work under an employment contract. This is a formal contract of service or apprenticeship between an individual and their employer. It can be agreed verbally or in writing.

Employees typically perform a specific role and are paid a set wage or salary. They’re expected to work under the terms of their contract and are entitled to the full range of employment protections.

A ‘worker’, on the other hand, has a less structured relationship with their workplace. They carry out work under a contract to provide services personally for a reward. This reward could be money or an equivalent – for example, the promise of a contract of future work.

A typical example of a worker is a casual worker – someone who works when they’re needed. The employer doesn’t have to offer work and the worker can turn work down.

Workers are entitled to protections under the Equality Act 2010, the Working Time Regulations 1998 and the National Minimum Wage Act 1998.

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 following judgements from previous cases). A range of criteria has been developed to define this employment relationship, often known as ‘tests’.

Mutuality of obligation

A test that gives a basic indication of employment, ie the existence of a contract of service, is ‘mutuality of obligation’. This test asks whether:

• the organisation is obliged to offer work
• the individual is obliged to do that work.

If so, the relationship is seen to be a contract of service. In this test, organisations should consider if or how the individual can refuse work, without ramifications, and/or if the individual appears compelled to work at set times or for set durations.

Needing regular, reliable volunteers who undertake time-bound shifts is of course reasonable for some service delivery. This should be communicated between the organisation and volunteer in such a way which maintains the activity being truly voluntary and not because of immovable obligation.

If volunteers are found to be working under a contract, they may become 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)
• protection under the Equality Act.

As well as these rights, employees (people working under a contract of service) are covered by employment legislation. 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
• protection from being unfairly dismissed.

It’s important to recognise the difference between ‘volunteers’ and ‘voluntary workers’.

A volunteer provides their services voluntarily, without being paid. A voluntary worker also provides their services without being paid – but they’re under a contractual obligation to do so. The organisation is also under contractual obligation to provide them with work.

A voluntary worker is not entitled to national minimum wage.

They:

• may receive reasonable expenses, such as travel or lunch
• may be entitled to certain benefits that volunteers are not, such as accommodation
• will have some form of contract
• are entitled to the same rest breaks and holiday as workers and employees under the Working Time Regulations 1998 (though the holiday is effectively unpaid, since they don’t receive payment for their work)
• receive protection under the Equality Act 2010.

Sometimes people from overseas can volunteer but can’t do voluntary work.

Student placements and work experience

Students who are required to do an internship or work placement for less than one year in order to complete a UK-based further or higher education course are not entitled to national minimum wage. A common example of this is student counselling placements.

Students under school-leaving age on work experience placements are not entitled to national minimum wage.

Internships and work shadowing

If a work placement or ‘internship’ only involves observing or shadowing an employee and no work is actually carried out by the individual, they’re not eligible for national minimum wage.