21 December 2011
Employment Case Update
Employment Partner Sarah Rushton examines the latest cases. Please scroll down for previous reports.
X v MID SUSSEX CITIZENS ADVICE BUREAU
The Big Society, apparently aimed at fostering a culture of volunteerism, was a central plank of the Tory manifesto. Looking at the issue cynically, it could be said to about saving money at a time when swingeing cuts are being made. If people are willing to provide their services for free, then you need not pay others to do the job. After all, volunteers are cheap, dispensable and less trouble than employees, aren't they? Well, maybe not.
The issues surrounding the legal status of a volunteer are complex and it is important for those engaging volunteers to make sure that they get the relationship right. Charities may come unstuck if their volunteers are able to show that they are in fact employees or workers.
In a genuine volunteer arrangement, there will be no 'mutuality of obligation' between the volunteer and the organisation to which they are providing their services. The volunteer should be free to provide their services as and when they see fit and there should be no expectation on the part of the charity. Any agreement between the volunteer and the organisation needs to be carefully worded to ensure that a contract of employment is not inadvertently created.
In order to be consistent with volunteer status, it is important that volunteers are not paid for their time. If they are paid expenses then these should be genuine out-of-pocket expenses rather than a flat rate allowance. Any expenses over and above this may be regarded as income for tax or benefit claim purposes . In some cases it may even be viewed as a wage (see for example Migrant Advisory Services v Chaudri EAT).
The inability to create an obligation on the part of the volunteer or to pay them can be problematic. Joanna Kennedy, chief executive of the charity Z2K, points out: 'Sometimes I would love to be able to pay volunteers for their work, as then there would be a clear mutuality of obligation which would mean we could ask for more regular attendance and reliability. We value and respect our volunteers but need to take care that we do not inadvertently create an employer/employee relationship.'
The issue is an important one. Volunteers do not have protection from unfair dismissal nor are they entitled to the national minimum wage. It would also appear that a genuine volunteer has no protection against discrimination in X v Mid Sussex Citizens Advice Bureau and others  EWCA Civ 28. In January The Court of Appeal held that a CAB volunteer could not pursue a claim under the Disability Discrimination Act 1995. She had no contract nor was the arrangement one which determined to whom employment should be offered. Although the case related to disability discrimination, its principles are equally applicable to all other areas of discrimination.
Clearly no one would expect the vast majority of those engaging volunteers to discriminate against them or to dismiss them for no reason, but in an increasingly litigious society a number of charities have expressed relief that the courts have confirmed that discrimination rules do not apply.
However, for those organisations which are both responsible and risk averse, it is worth remembering that the cases in relation to volunteers arose primarily because the individuals concerned thought that they were being treated unfairly. As Joanna Kennedy observes: 'If the relationship is handled correctly then there is mutual benefit in that volunteers find the work personally rewarding and learn useful new skills. In return the organisation is able to do far more work than it would be able to do using only paid staff. Charities need their volunteers and our volunteers learn important life skills from being involved with us. Treat your volunteers properly and your organisation will reap the rewards.'
HASHMAN v MILTON PARK
In Hashman v Milton Park (Dorset) Ltd t/a Orchard Park ET 3105555/2009.) Mr H was engaged as a gardener by Orchard Park and dismissed 6 months later.
Mr H a life long animal rights campaigner complained that he was dismissed because the majority shareholders in Orchard Park (who were apparently supporters and members a Hunt) discovered his opposition to fox hunting.
Orchard Park argued that he was dismissed for economic reasons and that besides, his anti fox hunting beliefs, could not amount to a protected " Philosophical belief" under the Employment Equality (Religion or Belief) Regulations 2003 ("the Regulations ").
The Regulations prohibited discrimination in the workplace on grounds of religion or belief. The definition of "Belief" included any "religious or philosophical belief". The Equality Act 2010 which replaced the Regulations, includes substantially the same definition of belief.
An employment tribunal held that a general belief in the sanctity of life which included a strongly held belief in anti-fox hunting, constituted a "philosophical belief" for the purposes of the Regulations. There will therefore be a further hearing to see if Mr H suffered discrimination (and so is entitled to compensation) as a consequence of that belief.
The Employment Judge observed that not every one who was anti fox hunting would necessarily hold a 'philosophical belief' for the purposes of the legislation and that the case was very much determined on its own facts.
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