Defining volunteers

I read with great interest the article on internships in AP249. However, Sean Egan and Paul Jennings have overlooked a fourth category of employment relationship. ‘Voluntary workers’ are different to volunteers for National Minimum Wage (NMW) purposes, and there’s a useful breakdown of who is not entitled to NMW on the Directgov website.

To be a voluntary worker you must have an employment contract or contract to perform work or provide services for a charity, voluntary organisation, associated fund raising body or statutory body. You should receive no more than limited expenses and benefits in kind and are not entitled to be paid the National Minimum Wage.

Paul Jennings responds:

Mark’s letter highlights just how much confusion exists in relation to employment status. To be entirely fair, the courts have been struggling with these concepts for over half a century – so it is little wonder that misunderstandings are widespread. The reference to ‘voluntary workers’, which is defined by section 44 of the National Minimum Wage Act 1998 (the Act), does not – as Mark’s letter suggests – represent a fourth category of employment relationship. Rather, it is a very narrow statutory exemption from an individual’s right to the minimum wage that applies in respect of the first two categories highlighted in the article in AP249 (namely, employees and workers). Importantly, the statutory exemption is not a panacea and organisations should not seek to rely on it without first taking specialist advice. By way of a single example, the exemption contained with section 44 of the Act can be rendered ineffective if a voluntary worker is provided with any form of remunerative or non-remunerative benefit (for example, tickets to see a show). Further, entering into an arrangement which satisfies the requirements of section 44 of the Act gives rise to a range of significant potential liabilities that do not arise within a genuine voluntary arrangement (for example exposure to discrimination claims).

In collaboration with ArtsProfessional, Bates Wells and Braithwaite is running an evening master-class entitled ‘Interns and volunteers: a practical guide to the law’ on 3 May from 5.30 pm to 7.00 pm, which is free of charge to ArtsProfessional readers (normally £100): attenders will have the opportunity to enjoy drinks and networking afterwards. Register here