Volunteers

This week (1-7 June) is “Volunteers Week”.   Notwithstanding the controversy and frequent public discussion about unpaid internships and exploitation, there still seems to be confusion about the employment status of “volunteers”, “interns” and those on “work experience” and when the law requires “volunteers” to be paid.

Volunteering is a wonderful thing.  So much of society would cease to function without the army of volunteers giving up their time, energy and effort to help other people or causes that would quite simply be bereft without them.  However, it is important to remember that just because someone is volunteering, they are not necessarily a “voluntary worker” for the purposes of National Minimum Wage (NMW) entitlement, and organisations (commercial and charitable) need to be careful to ensure that the specific conditions are met if they are not to be at risk of penalties, reputational damage, and the risk of pay claims.

Is work experience voluntary work?

One question I am repeatedly asked as we approach the summer holiday period is “should we to pay someone for work experience”?

Setting aside the moral argument that people should be paid to work, the legal answer is not always straightforward.  In a nutshell my answer tends to be if someone is just observing as a learning experience (work shadowing), then probably not.  However, if they are doing anything valuable – i.e. tasks that someone else who is paid may be required to do (yes, even if that is photocopying and getting coffee) then yes, they almost certainly should be paid.   Yes, even if they requested the experience.  Yes, even if they are a friend / client / contact / CEO’s kid that is being given the experience as a favour! Although in a fair society access to any experience programme should always be more egalitarian than who you know!

In short, if someone on “work experience” is doing “work”, (even to gain experience that will almost certainly be more valuable to them on their CV than it is to the organisation in question) they should be paid.   To do otherwise is neither fair to the person working, or to those deprived of the opportunity to gain experience because they can’t afford to spend time working without pay, nor is it worth the business and reputational risk.  You may regard it as a favour – BEIS is unlikely to see it the same way.

National Minimum Wage

Given the potential consequences for an employer of failing to pay NMW it is surprising that some still ignore the risks. By way of a sobering reminder, those consequences include:

• 6 years of potential back pay to the individual, coupled with claims for breach of contract, unlawful deduction from wages etc.
• Civil penalties in the form of substantial fines.
• Naming and shaming (for which the arrears threshold is not high – i.e., total arrears of £500 or £100 in the event of previous NME offences in the preceding 6 years.
• Criminal penalties, for example for employers who refuse or wilfully neglect to pay NMW or keep false records.

If someone is a “worker” they are entitled to NMW unless they fall within a number of very specific exemptions – and contrary to popular belief “volunteering” to do the work is not necessarily one of those.  For the purposes of determining whether someone is entitled to be paid NMW a “voluntary worker” is usually only someone who works for a charity, voluntary organisation, associated fundraising body, or a statutory body, and then only if specific conditions are met.

But, work experience is voluntary…..

There is no single legal definition of “volunteer”, “work experience” or “internship”, and the huge spectrum of differing relationships means that it is not always easy to determine whether someone is an employee, a worker or a genuine volunteer – and so to determine whether they are entitled to NMW (or whether they can just be paid expenses for example).

Volunteering to undertake work is not a reason not to pay NMW and volunteering for work experience is no different. Unless the work in question falls within one of the volunteer exemptions in the legislation (see below) work experience should be paid.  Exemptions include:

• Students working for one year or less as part of a UK based higher education course.
• Students of compulsory school age undertaking work placements.
• Those participating in government schemes to provide training or work experience etc.
• Voluntary Workers (see above).

Bottom line

If you are an organisation that relies on volunteers make sure you fall within one of the specified categories that can engage voluntary workers, and that you don’t fall foul of the specific rules around contracting with voluntary workers and the payments (i.e. expenses) that can and cannot be made.  A disgruntled volunteer alleging breaches of NMW legislation could prove costly and reputationally catastrophic.

If you are a commercial organisation providing access to work experience – make that experience meaningful to the student, valuable to the organisation, oh, and PAID!

Article by Adele Martins, Partner & Head of Employment