24 November 2011
Relationships with volunteers
In an important case decided in the Court of Appeal earlier this year volunteers such as Sunday school teachers, youth leaders and all other volunteers linked to the Christian world were preserved from the consequences of being made subject to equality legislation. This will have an enormous positive impact on the faith sector which relies heavily on volunteer support.
The specific case considered by the court involved a volunteer at a Mid-Sussex Citizens Advice Bureau who claimed to have suffered unfavourable treatment because of her disability and argued that her volunteer role should be treated as an 'occupation' for the purposes of discrimination law.
Her claim was supported by the Equality and Human Rights Commission. However, her argument failed at an original employment tribunal, at the subsequent Employment Appeals Tribunal and finally at the Court of Appeal.
Of course, Christian charities will seek to do all they can to treat fairly and in an honourable way those people who voluntarily give considerable time and energy in support of their work. However, sometimes difficult issues and questions arise. What if volunteers don't share your faith? What if you don't agree with their lifestyle choices? What if they have a disability which makes it impractical to allow them to volunteer?
Subsequent to the above case, the courts have again confirmed that genuine volunteers are not protected by discrimination law and do not have the right to bring claims for unfair dismissal. This does not imply a green light for discrimination against volunteers however. Solicitors Anthony Collins recently defended a claim against a Christian charity by a man who had been rejected from volunteering on the grounds that they understood he was in a sexually active homosexual relationship. He argued that he was working under a contract to personally perform work because he received accommodation and food as a result of his volunteering, and therefore was protected by employment legislation. The charity argued, among other points, that these were provided to enable him to perform the functions he had volunteered for, not as a benefit. In the light of the earlier decision by the Court of Appeal the charity felt reasonably confident of its position and the claims against it were eventually withdrawn.
However, this case serves as a warning to some charities which may find that their relationship with their volunteers may unwittingly create a contractual relationship which is protected by discrimination law. This can also give rise to an obligation to pay the National Minimum Wage. Key issues to consider when looking at volunteer status include:
Intention to create legal relations - why is the volunteer giving their time?
Is it because it is part of their own desire to serve Christ rather than any intention to enter into a legally binding contract?
Payment (of salary) or in kind
In order for any legally binding contract to exist there must be some form of benefit passing from one party to the other. This could be a financial benefit, for example the provision of an allowance that goes beyond expenses incurred in providing the training. It could also include non-financial benefits such as the provision of accommodation or providing training that is not wholly for the purpose of the individual's work as a volunteer.
An obligation on a charity to provide work and an obligation on an individual to perform that work is an essential element of any employment relationship. Charities need to consider their relationships with their volunteers carefully and, ideally, clearly record the nature of those arrangements to support their understanding that the volunteers are genuinely volunteers.
Common problems that lawyers have seen Christian charities fall into regarding volunteers include:
- Engaging non-Christian volunteers to carry out work which they argue, for their employees, requires the employee to be a Christian.
- Providing benefits to volunteers, unwittingly creating an employment relationship and consequent liability for the National Minimum Wage.
- Using a voluntary role as a precursor to an application for paid employment. Employers have an obligation not to discriminate in the arrangements they make for determining who will be offered paid employment if a person's volunteering has been terminated for a discriminatory reason. This could impact on the fairness of a subsequent employment decision.
It is always worthwhile obtaining good legal advice if an organisation is unsure about the nature of its relationships with its volunteers.