Arts organisations need to manage their volunteers carefully to avoid legal risks. Victoria Cook has some advice
We are living in austere times. Theatres, museums, galleries, festivals and art projects are operating on increasingly frayed shoestrings. A consequence of this is that organisations are likely to rely increasingly on the willing volunteers who already contribute greatly to the UK’s cultural life. So, how can arts organisation best manage their volunteers, and are there any risks?
Several tribunal claims have been brought by volunteers claiming protection from UK employment legislation. Most recently, in the case of ‘X v Mid-Sussex CAB’, a volunteer appealed the tribunal’s decision to strike out her claim to the Court of Appeal, arguing that European legislation gave legal protection to volunteers. Her appeal was rejected. Most genuine volunteers would not be able to bring employment tribunal claims. However, it is possible for individuals to be protected by existing legislation, or to become protected by the way in which the relationship between the individual and the organisation develops.
Individuals’ rights are protected if there is a contractual relationship between that individual and an organisation, or if there would have been if the individual was a successful applicant for a job. Any such contract does not need to be written down or expressly agreed and can arise simply through the conduct of two parties towards one another. To avoid a volunteer relationship becoming one of contractual obligations there are a number of points that organisations should observe:
Payment to volunteers: Any kind of payment to a volunteer for the work they do must be avoided. It is entirely acceptable for organisations to reimburse expenses, but this should only be done on the basis of actual expenses incurred. A volunteer should not be paid a notional figure, as this may amount to ‘consideration’ which could give rise to a contract.
Time ‘commitments’: A volunteer may be asked to volunteer on particular days and at particular times. This is not a problem, provided that it is not expressed as an obligation and the volunteer is not made to feel that they must attend on that day.
Control: This is a factor which would indicate an employment relationship. There may inevitably be an element of control that organisations will have over their volunteers, but care should be taken to limit the level of control that can be exercised over volunteers.
Training: Providing training to carry out a voluntary role is acceptable and normal, but volunteers should not be obliged to attend training. Volunteers should also not be offered training which they do not need as this, too, could amount to ‘consideration’. Under no circumstances should a volunteer be required to stay with the organisation for a specified length of time after training or be required to repay the cost of their training if they leave. This would clearly impose obligations on the volunteer.
Description of the relationship: If documents such as a volunteer agreement are used they should contain appropriate language to make it clear that there is no intention to create a legally binding relationship. Documents should refer to “hopes” and “expectations” rather than “requirements” and “commitments”.
Disciplinary and grievance procedures: Whilst it may be good practice to have procedures for resolving disputes and concerns with volunteers, ‘employee’ language should be avoided. ‘Disciplining’ a volunteer may also demonstrate that the volunteer is perceived as being under obligations towards the organisation, which is clearly unwise.
Other obligations and requirements: Any ‘job description’ should not impose obligations on volunteers, but act as guidance about the expectations for that role. A volunteer can of course be asked to give as much ‘notice’ as possible for taking time off or leaving the volunteering role, but no specific time period should be imposed. Similarly there should be no specified number of days holiday for volunteers.