45,000 volunteers are estimated to be helping at the Paris Olympics. It got us thinking about volunteer status in the UK and a recent Employment Appeal Tribunal (EAT) case which shed light on when a volunteer might be considered a “worker”.
The distinction is very important. As you would expect, workers and employees are offered far more employment rights than volunteers. For example, volunteers are not entitled to the minimum wage as they are not classified as workers. There are multiple reasons for this, ranging from the lack of an employment contract or any formal agreement to carry out work or deliver services, to the wider absence of mutual obligations. Moreover, volunteers do not fall directly under the scope of discrimination legislation and are therefore only protected against discrimination if their role qualifies as “employment” under the terms of the Equality Act 2010 – though beware, this definition is wider than you might expect!
There is no “legal” definition of volunteer, but a volunteer is generally accepted as being a person who is engaged in an activity which involves spending time, unpaid, doing something which aims to benefit a third party, other than a close relative. The UK has a very strong volunteer culture with a history of people getting involved on a voluntary basis in a wide range of events.
It is right to seek the correct balance between allowing people to offer their time without imposing too many restrictions on the organisations that engage them, whilst also ensuring that an individual’s good nature does not get exploited. However, this distinction between “volunteers” and “workers” is becoming increasingly blurred and the EAT recently held that a volunteer can be a worker if they are entitled to be remunerated in some form for their activities.
In Groom v. Maritime & Coastguard Agency [2024], Mr Groom (who was classed as a volunteer in the Coastal Rescue Service (CRS)) filed a claim on the grounds that he was denied the right to have a trade union representative present at a disciplinary hearing. Under UK law, only employees and workers have the “right to be accompanied” at a disciplinary hearing. His argument was based on the assertion that he should be considered a “worker” as defined in section 230(3)(b) of the Employment Rights Act 1996.
The CRS, which utilises about 3,500 volunteers, outlines its roles and expectations in a volunteer handbook, including attending training and maintaining a certain level of incident attendance. Volunteers can claim expenses for disruptions caused by its service, especially during unsocial hours.
At first instance, a tribunal ruled that Mr Groom was not a worker, as there was no contractual relationship with CRS, and remuneration was not an automatic right for volunteers. Mr Groom appealed this decision and the EAT overturned it, stating that the lack of a formal definition of “volunteer” means that the status varies by individual agreement. The EAT found that a contract exists when a volunteer participates in activities with a right to remuneration, as governed by a code or policy that sets minimum attendance requirements. This indicated a contract to provide services rather than just an agreement for expense reimbursement.
The EAT ruled that Mr Groom was a worker based on the personal service obligation at the times he was eligible for expenses, but did not decide on his status during unpaid activities, leaving that question open.
This case shows the importance of organisations being sure that an individual is genuinely a volunteer or is in law a worker. The job title or label an individual is given is not conclusive in this determination. An individual labelled as a “volunteer” could actually be considered a worker if the conditions under which they offer their services constitute an employment contract or an agreement to personally carry out work or services.
As the difference between a “volunteer” and a “worker” becomes increasingly indistinct, it is important for organisations to carefully figure out the real status of the nature of these relationships to ensure compliance with employment laws, and to give people the correct benefits and protections. In the event that a company wishes to engage volunteers, we recommend the following tips to reduce the risk of inadvertently creating a contract of employment:
still treat volunteers fairly and have procedures for dealing with problems and grievances, albeit ones which differentiate them from employees.
payments to volunteers that could be construed as wages should be avoided. Payments to cover actual expenses should be clearly identified as such and ideally reimbursed against receipts;
remove, or at least minimise, perks that could be seen as consideration;
reduce obligations on the part of the volunteer. Giving a volunteer the ability to refuse tasks and choose when to work would help refute the existence of a binding contract; and
still treat volunteers fairly and have procedures for dealing with problems and grievances, albeit ones which differentiate them from employees.
