Many charities would not exist without the dedication, time and skills of volunteers. Internships (or work experience placements) are now commonplace, but concerns remain about exploitation of unpaid staff.

It is easy for lines to become blurred between paid staff and volunteers which could lead to expensive legal claims and bad publicity.

The Charity Commission recommends a written ‘Role Description’ for volunteers to clarify the boundaries and expectations. It’s important that this isn’t confused with an employment contract or job description. E.g. it must not require volunteers to work particular hours. The NCVO provide some helpful guidance on this here.

The legal status of volunteers and interns (and the duties owed to them) can be messy, due to the varying types of relationship that can exist. An increasing issue is interns bringing claims in relation to potential entitlement to National Minimum Wage (NMW). Someone’s entitlement to the minimum wage, including the National Living Wage (NLW) if 25 years or over, will depend on whether the work experience or internship offered makes the individual a “worker” for minimum wage purposes.

For charities there are some specific rules, meaning that voluntary workers are not entitled to NMW, provided certain conditions are met:

  • They receive no monetary payment other than reimbursement of genuine expenses
  • They receive no other benefit in kind other than reasonable subsistence and accommodation

Think about other factors: for example, you would expect a genuine volunteer to have the ability to not turn up for ‘work’ if they don’t want to.

In summary, our top practical tips to consider:

  • Challenge your assumptions before you advertise any ‘unpaid’ or ‘expenses only’ role – to review if they might in fact be a ‘worker’ under the statutory minimum wage rules. Are there any other benefits in kind from the arrangement? Check if an exemption applies (such as the voluntary worker in a charity exemption) but take advice if you’re unsure
  • Always consider the reality of the relationship (irrespective of role title) as this is what a court or tribunal would do in order to decide whether someone is entitled to the minimum wage. Simply stating in a written agreement that a person is not a worker or that they are a volunteer does not mean that they will be classed as such under the NMW legislation
  • Document the arrangements. There is no legal obligation to have a volunteer or internship agreement, but they are useful to clarify the expectations of both parties
  • Write down Role Descriptions and/or learning objectives for volunteers and work experience placements, but:
  • Don’t refer to a Job Description, for example it should not require volunteers to work particular hours
  • Record with volunteers that you will only pay ‘out of pocket’ expenses, not any other payment that might be mistaken for salary for work done
  • Keep good records. Document the arrangement made with that person (even if it was made verbally). This can be crucial if someone claims that you owe them minimum wage arrears, as you will have to demonstrate that they are not a worker for NMW purposes
  • Take care with any payments made to volunteers. If a volunteer receives any type of reward or payment other than out-of-pocket expenses, they may see this as a salary which could strengthen any argument that they should be classed as an employee or worker, which if successful would then give them some employment rights. Keep receipts and records of money paid out to volunteers
  • Do still manage health and safety for volunteers and work experience placements – just because you make them comply with a legal requirement (like safety) it is unlikely to lead to the person being classed as a worker for NMW purposes
  • Be alive to the situation where someone starts as a genuine volunteer but the scope of their role and time in the organisation expands over time. Review from time-to-time

Our employment solicitors and HR advisors work in partnership with organisations to improve their HR practices and advise on employment issues. To discuss this article or any other HR issue call 01872 265100 or employment@stephens-scown.co.uk.