Volunteers are not covered by the Em-
ployment Contracts Act and are unlikely to be covered by the Employment Relations Act as they do not work for hire or reward.
Employment law however, is not the only legislation covering the workplace or the only avenue of recourse for the aggrieved.
Two other significant areas of legislation are the Human Rights Act and the Health and safety In Employment Act.
Under the Human Rights Act, volunteers have the same protections against unlawful discrimination as employees. Any infringement can lead to awards of damages for expenses, humiliation, loss of dignity and injury to feelings. This is huge potential area of exposure for employers.
Discrimination under the Human Rights Act is two-part process. Firstly, it must fall within one of the following:
? Refusing or omitting to take on person for work that is available;
? Offering less favourable terms than those of other volunteers of similar capabilities, in the same, or substantially similar circumstances;
? Dismissing or disadvantaging volunteer when others similarly employed are not treated in this way;
? Retiring or making volunteer retire or resign.
Secondly, to prove discrimination it must be shown that one of the following considerations was factor:
? Sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status, and sexual orientation.
The other main responsibility to volunteers is health and safety. Many perform tasks “in the workplace” Ñ for example those working alongside paid employees in food bank.
In the eyes of the law, volunteers are seen in the same light as visitors or contractors and must be taught to follow the same health and safety practices as employees. Failing to do so could make an organisation liable to prosecution in the event of injury or incident.
There are no accident insurance obligations with volunteers as injuries suffered while performing goodwill tasks are treated as if they happened at home or going about daily business Ñ and are therefore fully insured by ACC.
One area of criticism levelled at some organisations is the use of volunteers to perform tasks traditionally performed by paid employees. This can lead to personal grievance claims by paid employees claiming that employers are taking work off them and giving it to volunteers, in effect restructuring their positions in contravention of legal obligations.
The criticism has largely been directed at multinationals who have full time volunteers on staff working in variety of roles. They are used in more commercially focused tasks such as marketing and public relations in addition to traditional volunteer work.
While in many instances this may be natural extension to the volunteers’ community work, there has been recent publicity about companies and even large public sector organisations accused of using volunteers in profit generating roles. For example answering calls and promoting products through advertising, and even direct selling.
Organisations need to take close look at their use of volunteers and carefully plan their tasks and responsibilities so volunteers’ goodwill is not abused and any potential conflict with employees is avoided.
It is possible to have binding agreements with volunteers that are not employment contracts. The most effective are based on easy to understand principles and clear boundaries.
The boundaries are needed to reduce the possibility of dispute or misunderstanding between the volunteer and the organisation, and also between employees and volunteers or employees and the organisation.
When setting out an agreement, make sure it includes the following:
? The organisation’s mission statement
? Anticipated hours of volunteer work
? Reporting lines
? Areas of responsibility and boundaries
? Disputes procedure
? Most importantly, clause specifying that it is not an employment relationship and no remuneration will be paid.
It is vital that every part of the relationship with volunteers Ñ from recruitment to termination Ñ takes full account of all legal obligations, especially the Human Rights Act.
What this means in practice is that volunteers cannot be viewed as resource requiring no more than cup of tea and thank you at the end of the day.
Organisations have significant obligations Ñ to the volunteers and their own employees Ñ and failing to comply can be costly.
Bevan Gibbs is consultant with human resource consultancy Greene Hanson.
