Thursday, 26 January 2012

Are you up for being a CaRT volunteer?

After a recent ruling by three judges that a Citizens Advice Bureau volunteer is not covered by employment law because they did not have a contract of employment and was not being paid. He or she also did not qualify for protection under the Disability Discrimination Act 1995 and the associated European Framework Directive.

What this has done is to create a situation where a volunteer may or may not be covered for any of the usual protection from third party liabilities. Such as getting hurt whilst volunteering. Or causing an accident. Remember the old adage - where there is a blame there is a claim. Who meets the claim, the charity or the volunteer.

The decision was welcomed by the Association of Volunteer Managers. If the appeal had been allowed, they argued, it would potentially have created a huge financial burden for many charities and deterred them from taking on volunteers.

What this means is that having to pay out for such liabilities cover would cost to much. 

Paul Michell, the barrister who successfully represented the CAB, recognises that the outcome does not leave a satisfactory state of affairs. "If volunteers are not protected under employment and occupation directives, then how are they protected? That is the next question."

Rob Jackson, director of development and innovation at VE, said it was pleased with the Court of Appeal's decision. "We don't think volunteering is the same as paid work. Making it so would create another set of problems. It would put up barriers to volunteering when we're trying to encourage more of it."

Kate Bowgett, Association of Volunteer Managers, also thinks the appeal court got it right. Volunteers she says, "don't exist legally".

That means that a volunteer is on their own. There is no such thing as an acceptable legal definition of a volunteer. Other than a volunteer does not exist.
Mark Restall, a consultant on volunteer management and author of Volunteers and the Law, agrees with Bowgett. "A few years ago I would have said volunteers needed a better defined status. But now I feel that the status quo is better. At the moment it's based on mutual trust, and any legal changes would risk making it something different - almost a sub-category of employment."

Restall also cautions against anything that might look to an employment tribunal like a contract or a form of payment. "They will look at whether something of value has been offered or exchanged. This can be anything over and above direct reimbursement for expenses." He says that even giving volunteers a flat rate to cover potential expenses or offering them perks such as discounts at a charity shop could be seen as payment. "The problem is that we don't know for sure about lots of issues, but we only ever do when it comes up in a tribunal case, and there's only been a small number of them".
The appellant in the CAB case in the appeal court did not have a contract with the CAB, but she had been given a volunteer agreement. This was described in court as "binding in honour only ... and not a contract of employment or legally binding".
Victoria Willson, a solicitor at Levenes Employment, which specialises in the third sector, says that such a document or a letter can be helpful. "It should say that they are a volunteer. It shouldn't be too prescriptive, though. Make it clear that the arrangements do not impose any obligations to do the volunteering and avoid using employment law terminology - for example, 'disciplinary' and 'grievances'."

Would you still volunteer after reading the above?

Read more Here - Here and Here


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