restructuring and redundancy

The legal position of volunteers is not a simple issue but it is one that concerns many employers both within the third (voluntary) sector and beyond. Organisations often find volunteers to be an invaluable asset and some depend on volunteers to ensure their survival. However, difficulties can arise if their employment status and other legal issues are not dealt with properly from the outset.

It is often incorrectly assumed that volunteers have no employment rights. In fact, there have been cases where volunteers have managed to prove they are actually employed and have therefore qualified for some or all employment rights.

What follows is a brief summary of important legal issues that you should be aware of and how to avoid the pitfalls, particularly if you have volunteers in your workforce right now.

Legal Status

Confusingly there is no single statutory definition of “volunteer” and the term is not mentioned in most legislation involving the workplace. This ambiguity means it can be unclear exactly what an organisation’s legal obligations are in relation to a volunteer and what the individual’s rights might be.

Individuals who are found to be employees have the following rights: sick pay, minimum notice periods, the right to claim ordinary unfair dismissal and a statutory redundancy payment after two years of qualifying employment.

Individuals who are found to be workers have the following basic rights (as do employees): statutory minimum paid holiday entitlement, to receive the national minimum wage, working time limits and breaks from work. Both categories, employees and workers, and other persons who must carry out their work personally (rather than contract out to someone else), are protected by anti-discrimination legislation.

The legal status of volunteers is unclear and this is not helped by a wide range of different types of arrangement from entirely voluntary to contractually defined and many in between. There have been a number of cases on the legal status of volunteers. The issue most often arises if a volunteer believes they have been unfairly dismissed or discriminated against. The employment tribunal must first decide if the individual meets the definition of employment in the relevant legislation and if there is a legally binding contract between the parties.

There isn’t one easy test to decide if a volunteer has employment rights and this will depend on the precise facts of a case. Factors that have led to a finding of employment rights have included persons receiving payment for expenses in excess of the actual amount incurred, training beyond the voluntary role, and other benefits such as holiday pay and sick pay.


Organisations should reimburse out of pocket expenses only. More than this can be considered as income and lead to volunteers qualifying for employment rights. Furthermore, volunteers on benefits could risk losing these if they are given more than the flat rate of expense payments.

National Minimum Wage

Employers are required to pay the national minimum wage to all workers, which from 1 October 2015 will be £6.70 for those who are 21 years and over. There will be an increase to £7.20 from April 2016 for workers who are 25 years and over. Failure to do so can lead to a breach being publicised on the government website (, expensive fines and imprisonment.

Volunteers will not be qualifying “workers” for the purpose of the national minimum wage if there is no legally binding contractual agreement for them to provide their services and there is no payment or benefit in kind for them providing their services.

Health and Safety

All organisations have a duty of care to protect the health and safety of their volunteers. This means taking all reasonable steps to prevent harm occurring either by action or inaction. Volunteering England advises that organisations include volunteers in their health and safety policies as a matter of good practice and in order to protect themselves and their volunteers from risk, take out appropriate insurance.

DBS Checks

It is an offence to knowingly use a barred person as a volunteer in a regulated activity such as an out of school club.  Where volunteering involves working directly and regularly with vulnerable groups, including children and young people, organisations must therefore obtain a Disclosure and Barring Service (DBS) check.  A failure to do so can result in an unlimited fine or a prison sentence of up to five years, or both.

Data subject access rights 

Volunteers have the same right as any other citizen to request their personal data from an organisation under the Data Protection Act 1998. The same advice applies as for employees in your staff and you should ensure before creating an e-mail or document mentioning that person (by name or other identifying data) you would feel comfortable with it being read out in an employment tribunal or court of law.

Practical advice

  • Avoid anything that might be seen as payment for work. Only genuine out of pocket expenses should be reimbursed. Any training being provided should only be what is necessary for the relevant voluntary position; any more than this risks being seen as a perk in substitute for payment and could lead to a finding of employment status.
  • Express the volunteer relationship as one of expectation only rather than obligation, use language such as, “we hope” and “expect”, for example: have a volunteer agreement in place that says volunteers can expect you to reimburse expenses, to be treated fairly, you expect them to follow your equal opportunities procedure etc.
  • Give volunteers the ability to refuse tasks and choose when to work, pointing away from employment status.
  • Do not use language that implies employment status, so have a volunteer agreement and not a contract of employment. You should include a statement saying that neither party intends there to be an employment relationship.
  • Ensure volunteers are treated fairly and consistently with their role. Have procedures to deal with problems and their concerns to avoid storing up trouble and potential claims for your organisation.