Making sure you don't create an employment contract

It’s important to be aware of the risk of creating employment contracts with volunteers, but you can minimise this risk. You should strike a balance between having some structure in place to make the most of volunteers and making sure they don’t accidentally become workers: organisations need some commitment and reliability from volunteers, and not many people would volunteer if they were getting absolutely nothing from the relationship.

Here are some ways to make sure that your work with volunteers is a genuine volunteer relationship and minimise the risk of creating an employment contract.

Make sure that volunteers are only reimbursed for out-of-pocket expenses, or a reasonable pre-estimate of actual expenses, and collect their receipts and transport tickets. It may be more convenient to give a flat rate, but remember that any amount over actual expenses may be seen as a consideration. Calling payments ‘stipends’, ‘sessional payments’ or ‘honoraria’ doesn’t change this – they will still be seen as a consideration.

This can be difficult if volunteers are used to getting substantial benefits. However, clear perks (but not items needed for the voluntary work such as protective clothing) are likely to be seen as consideration by tribunals. Even something of value which is needed for the volunteer to carry out their work (such as training) can cause problems if the volunteer seems to have an obligation to do something, for example, if an organisation offered their volunteer some valuable training, but only if they stayed in the role for six months. The Relate case illustrates this point.

Any minor perks should be described and administered – as being at the organisation’s discretion instead of an automatic right as part of the relationship. Organisations should be careful not to let ‘discretionary’ payments become customary.

Time commitments can be a difficult area for organisations.

Many organisations ask volunteers to commit to minimum time periods. This should be avoided if possible. A compromise could be to acknowledge that volunteers can leave at any time, but suggest that if they stay in the position for at least a certain amount of time, they (and the organisation) will get the most out of the experience.

Another option for the organisation is to explain that it hopes the volunteer will stay for a certain amount of time.

The Grayson case clarified this a little: it’s fine to outline ‘reasonable expectations’, but this does not mean minimum time requirements are acceptable.

If you don’t want the relationship to be based on a contract, then it makes sense not to make it look like one. The Migrant Advisory Service case in our guidance on tribunal decisions demonstrates this point.

Avoid using language that is used for employment. Words such as ‘contract’, ‘job’ and ‘requirements’ are inappropriate for volunteers, where the language should be ‘agreement’, ‘role’ and ‘hopes’ or ‘expectations’. For example, ‘role or task descriptions or outlines’ for volunteers could be used instead of ‘job descriptions’.

It is advisable to explain in volunteer documents, such as agreements or policies that there is no intention to create a legally binding relationship.

For example: ‘This agreement is not intended to be a legally binding contract between us and may be cancelled at any time at the discretion of either party. Neither of us intend any employment relationship to be created either now or at any time in the future.’

This is not an easy get-out clause. If the arrangement between the organisation and its volunteers is clearly contractual, it would be ignored by a tribunal or court.

It should be clear to an outside observer that the relationship between the volunteers and the organisation is different to that between the organisation and its paid staff.

Of course, volunteers should still be treated well and their work should be seen as being valuable.

Some organisational policies should cover both paid and voluntary staff. This includes:

• Equal Opportunities
• Health and Safety
• Data Protection/Confidentiality
• Safeguarding

Insofar as these policies have content that is specific to employees, however (for instance, links to the disciplinary policy) it should be made clear that this content is not applicable to volunteers.

There should be separate policies for volunteers’ recruitment, supervision, problem solving and other parts of the individual’s relationship with the organisation. 

Everyone in an organisation should be treated fairly, including, of course, volunteers. Following good practice and having clear procedures for dealing with problems and grievances mean it is less likely that volunteers will feel the need to attempt to take a case to tribunal.

'Intern' is not a concept that is defined under UK law. A person undertaking an internship is legally an employee, a worker, or a volunteer, and the tests described above will need to be applied to determine which status exists.

As internships often demand a certain amount of time from participants, and may come with perks or benefits, there are dangers of creating an employment relationship.

In the employment tribunal case Vetta v London Dreams Motion Pictures Ltd, an unpaid, ‘expenses-only’ intern was found to be entitled to the minimum wage. In Hudson v TPG Web Publishing (2011) an intern successfully claimed the right to the minimum wage, as they were involved in recruitment and management without being paid.

To make sure that unpaid internships stay as voluntary relationships, it should be clear that interns are not under obligations. Avoid offering incentives to recruit or keep interns, such as benefits in kind or the possibility of paid work.

It may be more appropriate in some circumstances to offer paid positions instead of longer term internships that may imply a more ‘work-like’ role. You should also think through other issues, like how accessible the role or opportunity may be.