Volunteers and employment rights

Volunteers give time, carrying out activities that aim to benefit community or society. Volunteers are unpaid and choose how they wish to give their time.

Volunteering takes place in every sector from charities and not for profits to the public and private sector. The activities volunteers take part in are diverse, ranging from campaigning and fundraising to mentoring and befriending, running events and sports clubs to more formal roles like trusteeships. While trustees have legal obligations toward the charities they govern, there is no legal definition of ‘volunteer’, and this includes trustees.

Volunteers have fewer rights and less legal protection than paid staff, because relevant legislation – such as the Equality Act 2010 and the Employment Rights Act 1996 – does not apply to volunteers.  There have, however, been some rare cases in which volunteers successfully claimed such rights by showing that, from a legal point of view, they had an employment relationship with their organisation.

Volunteers should, of course, be treated fairly and with respect. An organisation that treated volunteers badly would struggle to keep volunteers, and face negative publicity. Organisations should know about volunteering good practice, and get support and resources from NCVO and local volunteer centres to make sure they use the right structures and approach.

The Equality Act 2010 combined previous anti-discrimination legislation into one act of parliament. The Equality and Human Rights Commission (EHRC) said it 'simplifies, strengthens and harmonises the current legislation to provide Britain with a new discrimination law which protects individuals from unfair treatment and promotes a fair and more equal society'.

The act protects people from discrimination on specified grounds (called 'protected characteristics') in employment and when using goods and services. However, volunteers generally don’t fall into either of these categories. They’re not included in the definition of employment in the Equality Act 2010:

See our guidance on volunteers and employment status for more on the definition of employment and the rare cases where volunteers can be seen as employees.

The possibility that volunteering could be seen as akin to receipt of a service provision has been raised from time to time. Legal opinion is that such a claim is highly unlikely to be successful.  

When does the Equality Act 2010 apply to volunteers?

Organisations may be responsible for their volunteers’ discriminatory actions under the Equality Act 2010. Although volunteers are not employees, the organisation has asked them to act on its behalf.

EHRC guidance says:

Organisations won’t necessarily be liable if a volunteer has ignored training or guidance, but the organisation should notice and rectify mistakes or problems as soon as possible or they may become party to the discrimination.

An organisation may be liable if a volunteer harasses an employee.  Employers must take reasonable steps to stop employees being harassed. Organisations must show that they have taken reasonable steps to make sure that volunteers know about equality issues and do not discriminate towards service users or harass employees.

Tips for making sure volunteers know about equality issues

• Include volunteers in your equal opportunities policy (to an appropriate extent, for instance making it clear that any cross-references to employee policies such as the disciplinary policy will not apply).
• Discuss equality issues with volunteers in their inductions. Make sure they understand the organisation's commitments and responsibilities, and will meet these.
• Have clearly defined role descriptions that set out the boundaries of volunteers' roles and responsibilities.
• If volunteers will be working with beneficiaries or service users, give adequate training on equality issues in the context of their work.
• Make sure there is enough supervision, communication and monitoring to keep an eye on day-to-day behaviour, and take action if issues arise.
• Give each volunteer a named supervisor to go to with questions or concerns, so that they never have to work beyond their role or training.
• Make sure service users and volunteers have clear ways to raise complaints or concerns, so that mistakes can be swiftly put right.

Although volunteers don’t have the same rights as employees, they may have some rights if they have an emotionally harmful or threatening experience.

Here are two theoretical examples of this. However, we’re not aware of any incidents in which either example has happened.

Health and safety

If poor treatment of a volunteer has caused demonstrable emotional harm, and the organisation broke its duty of care or duties under the Health and Safety at Work etc Act 1974, it could be treated as a health and safety issue.

To be liable, the organisation would need to have failed to take reasonable steps to keep the volunteer safe.

In general, harm has to be foreseeable – for example, if the organisation knew or should have known that the volunteer was being exposed to risks to their mental health. Such cases are very hard to prove.

Harassment

A volunteer could use the Protection from Harassment Act 1997. This law was introduced to stop stalking, but it has been used by employees in cases of harassment in the workplace.

A ‘course of conduct which amounts to harassment of another’ – which means alarm, anxiety or distress is caused at least twice – is a criminal offence under the Act. In the case of Majrowski v Guy's and St Thomas's NHS Trust, the House of Lords found that the employer was ‘vicariously liable’ for the behaviour of a bullying line manager.

It’s hard to know when behaviour counts as harassment, but the Court of Appeal did note in a later case that it must be of a serious nature, where ‘the conduct is of such gravity as to justify the sanctions of the criminal law’ (Conn v Council of the City of Sunderland).

This law is not limited to employees, so it could be applied by volunteers.