Being one - and managing them!

Volunteering is different from employment

In many ways it's better being a volunteer than an employee: you can take on greater responsibility, try out new skills, gain work experience, spread your wings and grow in confidence. You could simply walk away if you're not happy. Mind you, you also don't get paid for what you do! 

Managing volunteers is also very different from managing paid employees. In my own experience, you need to be a far better manager to pull it off successfully ... but if you win, you can achieve far more than you might in the world of paid work.

Intrigued? Then here's a useful guide, which was shared with us by the Council for Voluntary Service (CVS) and applies to any voluntary organisation - not just CPRE!

• Employees and volunteers
• Remuneration & the National Minimum Wage
• Reimbursing expenses
• Volunteer agreements
• Equality & diversity
• Selection & screening
• Insurance

The following subjects are covered in Volunteering II:

• Health & safety
• Social Security Benefits
• A Volunteer Policy for your organisation
• Managing volunteers - a Good Practice checklist

Employees and volunteers

remuneration + contract = employee
no remuneration + no contract = volunteer

Remuneration does not include the reimbursement of legitimate expenses allowed by HM Revenue & Customs.

At its simplest, a contract is an agreement which involves:

• consideration (payment or something else of material value) being provided in return for work, goods or services; and
• the intention to create a legally binding relationship between the parties

Contracts do not need to be written or called a contract.

If an individual provides work for an organisation and receives pay or other consideration, they will be assumed to have a contract of employment.  The courts and employment tribunals generally assume that if one party agrees to pay another for work, they intend the relationship to be legally binding.

Employees have many statutory employment rights including:

• protection from unfair dismissal                     Back to top
• the National Minimum Wage
• sickness pay, maternity and paternity pay and leave, holiday pay, redundancy pay

Organisations need to consider carefully if their 'volunteers' are actually employees.  Failure to understand the difference could be expensive!

A number of Employment Tribunal cases illustrate the issues:

Armitage v Relate [1994]

• Mrs Armitage was a volunteer counsellor with Relate and claimed racial discrimination. The tribunal decided she was legally an employee.
• Relate conducted a particularly rigorous selection and training process. Mrs Armitage was required to provide a minimum number of hours counselling each week and had to repay part of the cost of training if she left before providing 600 hours of counselling. After three years' training, counsellors could become wholly paid or have some sessional paid work. Relate for its part undertook to provide training and not to make any changes to working arrangements without consultation.
• The tribunal's decision was based largely on the requirement to repay the cost of training, the minimum obligations and the fact that training led to an opportunity for paid work.

Chaudri v Migrant Advisory Service (MAS) [1997]

• Mrs Chaudri did administrative work with MAS for two years and claimed unfair dismissal and sex discrimination. The tribunal decided that she was an employee.
• Mrs Chaudri worked four mornings a week and was described by MAS as a volunteer. She lived nearby, walked to work and returned home for lunch. Nevertheless MAS paid her 'volunteer expenses' of £25 rising to £40 a week, including weeks when she was on holiday or off sick.
• The 'expense' payments are a clear case of consideration. The regular payment of these amounts, including holidays and sick leave, meant they became wages for employment.

Gradwell v CVS Blackpool, Wyre and Fylde [1997]

• The tribunal decided these volunteers were not employees.
• All volunteers signed a written volunteer agreement. Volunteers were obliged to attend relevant training and monthly meetings but there was no other minimum time commitment. The CVS reimbursed actual expenses.
• The tribunal decided there was no consideration, as neither payment of genuine expenses or providing training amounted to consideration, and no intention. This is a useful case as the CVS followed a common model of good practice.

Alexander v Romania at Heart [1997]                                        Back to top

• Mrs Alexander claimed unfair dismissal. The tribunal decided she was not an employee.
• Mrs Alexander ran a charity shop for three years, with managerial and financial responsibilities. She had a written job description, was paid expenses and received relevant training. She had earlier turned down an offer of a salary because she did not wish to be paid.
• There was no consideration and therefore no contract, training could amount to a consideration but the organisation had no obligation to provide it. The skills Mrs Alexander learnt simply accrued to her and weren't supplied as a benefit to her by the charity shop.

South East Sheffield Citizen's Advice Bureau v Grayson [2003]

• Mrs Grayson sought to show that the Bureau's volunteers were working under a contract because the volunteers had to agree to work at least six hours a week, and received consideration in the form of training, reimbursement of expenses, and an indemnity (promise of repayment) if a negligence claim were successfully brought against them.
• The case went to an Employment Appeal Tribunal (EAT) hearing, which (unlike Employment Tribunals) can create legal precedents.
• The EAT said there was a limited unilateral contract, which they called an ‘if' contract: ‘If you do any work for the Bureau and incur expenses in doing so, and/or suffer a claim from a client you advise, the Bureau will indemnify you against your expenses and any such claim'. But, the EAT said, this did not impose any obligation on the volunteer actually to do any work, so it did not constitute a contract for services or a contract of employment. Furthermore, the training was necessary to enable the volunteer to do the work, and did not constitute consideration for the work.
• The EAT said that the fact that the volunteer agreement was not signed and its stated intention was ‘to clarify the reasonable expectations of both the volunteer and the Bureau' suggested that it was not intended to be legally binding.
• The key issue for the EAT was whether or not the volunteer agreement imposed a contractual obligation on the Bureau to provide work, or the volunteer to carry it out. The EAT said ‘Like many similar charitable organisations, similarly dependent on the services of volunteers, the Bureau provides training for its volunteers and expects of them in return a commitment to work for it, but the work expected of them is expressed to be voluntary, it is in fact unpaid and all that the Volunteer Agreement purports to do is to set out the Bureau's expectations of its volunteers'. A volunteer for the Bureau would be able to leave at any point, without the Bureau having recourse to action for breach of contract.
• The EAT concluded that the Bureau's volunteers were not employees.

Based on these cases, volunteers are unlikely to be working under a contract provided they:

• receive only proper reimbursement of genuine expenses; and
• receive only training etc necessary to do the work, rather than training or other benefits that are not necessary for the work; and
• do not receive perks or anything else that could be seen as consideration; and
• are not subject to sanctions if they decide not to work.

Volunteers who receive lump sum expenses or other reimbursements which are not linked to actual out-of-pocket expenditure, or benefits which are not related to the volunteering, may be working under a contract.  If they work regularly, it may be a contract of employment.

Seven areas for action:                                                         Back to top

Cash payments:

• the safest approach is to reimburse actual expenses, preferably against receipts
• paying more than actual expenses amounts to consideration and may indicate intention if the amount is more than nominal

Benefits in kind:

• benefits in kind can constitute consideration where the organisation has committed itself to making them
• but the occasional social event does not amount to consideration and doesn't indicate intention

Training:

• training should be that which is needed to do the volunteering
• training which is for the volunteer's personal benefit and not related to the work could amount to consideration, but the risk is reduced if such training is not seen as a right

Rights and obligations:

• avoid setting out rights and obligations, for example an obligation to work a minimum number of hours
• in particular avoid a right given in exchange for an obligation, for example providing training in return for work
• always express agreements in terms of hopes or expectations
• but there is no problem with obligations to follow the organisation's practices or legal requirements, for example health and safety policy, confidentiality policy or equal opportunities policy

Mind your language:

• avoid words like contract, pay, employer, binding obligation
• include a statement along the lines of 'this agreement is binding in honour only and is not a contract of employment or legally binding' - but remember that the court or tribunal will go beyond the words and look at the reality of the situation
• while it is good practice to put the relationship in writing, avoid very formal documentation that suggests the intention is to create a legally binding relationship

Create a distinction between paid workers and volunteers:

• it must be clear to an outsider that the relationship between volunteers and the organisation is different to the relationship between paid workers and the organisation
• but different does not mean ‘second class'

Treat your volunteers fairly:                                       Back to top

• difficulties generally only arise when volunteers are treated (or feel that they are treated) unfairly

Most organisations are in the safe zone and have no cause for concern.  Only a very few ‘volunteers' have ever successfully established that they work under a contract - and those cases were not surprising in light of the unusual arrangements in the organisations concerned.

Remuneration and the National Minimum Wage                            
Unless the person is on a training, return-to-work or other scheme which specifically allows payments tax-free, all payments (other than reimbursement of legitimate expenses) are remuneration and subject to income tax and national insurance contributions.  This includes payments described as:

• an honorarium
• ex gratia payment (literally, 'out of gratitude') or other one-off payment
• pocket money
• sessional fees
• anything called an expenses payment unless it complies with HM Revenue & Customs rules for legitimate out of pocket expenses
• lump sums to cover expenses, unless HM Revenue & Customs has approved in advance any flat rate payments.

The amount is irrelevant, even a token payment is remuneration, and the individual and the organisation must comply with all the normal requirements relating to income tax and national insurance contributions.

The National Minimum Wage Act 1998 gives what it calls ‘workers' the right to be paid the National Minimum Wage.  The definition of ‘worker' is much wide than ‘employee'.  For someone to be a worker, they have to work under a contract.  Only a very few volunteers have ever successfully established that they work under a.

The National Minimum Wage does not apply to volunteers who:

• receive only reimbursement for genuine or reasonable out-of-pocket expenses; and
• receive no benefits other than training necessary for them to carry out the work.

The National Minimum Wage also does not apply to volunteers who:

• receive accommodation and/or meals because it is necessary in order for them to carry out their work; or
• receive a payment towards subsistence - usually as part of residential volunteering - but only if the volunteer is working for a charity, voluntary organisation, associated fundraising body or statutory body; and the volunteer has been placed with that body by a different charity acting in pursuance of its charitable objects; or
• are residential members of charitable religious or intentional community (provided the community is not an independent school and does not provide further or higher education courses).

This means a volunteer may be entitled to the National Minimum Wage if an organisation:

• makes payments over and above actual legitimate expenses; or
• provides subsistence or accommodation that are not reasonable in the circumstances of their volunteering; or
• provides training that is solely or mainly unrelated to their work.

Department of Trade and Industry National Minimum Wage website www.dti.gov.uk/employment/pay/national-minimum-wage

Take a look at the HM Revenue & Customs National Minimum Wage website.

National Minimum Wage helpline 0845 6000 678                          Back to top

Reimbursement of expenses                   
Reimbursement of expenses is an equal opportunities issue - some people will not be able to volunteer unless the organisation can refund their expenses promptly.

If an organisation refunds no more than a volunteer's actual out-of-pocket expenses there is no tax liability.  The volunteer does not need to declare the expenses to HM Revenue & Customs.  The organisation should keep a record of payments (including evidence such as receipts) but does not need to declare the payments to HM Revenue & Customs.

Legitimate out-of-pocket expenses include:

• travel to and from the place of volunteering and during volunteering
• meals taken while volunteering
• care of dependants, including children, during volunteering
• postage, phone calls, stationery etc
• cost of protective clothing

Legitimate out-of-pocket expenses must be:

• genuinely incurred (the money was actually spent)
• authorised by the organisation
• wholly for the organisation's work
• necessary for the organisation's work

Any payment over and above actual out of pocket expenses is remuneration and subject to income tax and national insurance contributions.  Both the volunteer and the organisation should keep a record of such payments and both should declare them to HM Revenue & Customs.  Payments over and above out of pocket expenses may also create an entitlement to the National Minimum.

Where private transport is used, HM Revenue & Customs sets maximum reimbursement rates for the payment to be considered tax free:

Payments over the above rates are considered to provide a profit for the driver and are taxable.  Volunteers' car insurance could also be invalidated if they make any profit unless they inform their insurance company (and pay any additional premium). 

Volunteers should keep records showing date, journey details, mileage and purpose of journey - for at least two full years.

HM Revenue & Customs provide additional guidance for volunteer drivers who offer their services for an organised volunteer car scheme.

Generally, reimbursement of out of pocket expenses does not affect volunteers' entitlement to social security.

Members of a governing body of a voluntary organisation can only be reimbursed for expenses if trust law or the governing document allows. Trustees (and holding or custodian trustees) of charitable trusts and unincorporated associations have a statutory right to be reimbursed for expenses genuinely incurred in serving as a trustee and for other costs properly incurred in administering the charity. 

Governing body members in companies (charitable or non-charitable) do not have a right to reimbursement unless this is explicit in the governing document or has been approved by members of the company. 

The rules of an industrial and provident society must provide for the right of committee members to be reimbursed for expenses.  Ordinary members of any organisation can be reimbursed unless this is prohibited by the governing document. 

In all cases the payment, recording, reporting and tax liability is the same as for reimbursement of expenses to other volunteers.

Organisations which are VAT-registered can recover VAT on road fuel, providing the fuel is used in the provision of goods or services that are subject to VAT at zero, reduced or standard rate.  This applies regardless of whether the road fuel is purchased by the organisation or by anyone (including volunteers) within the organisation. 

From 1 January 2006, the organisation can only recover VAT on fuel reimbursements if it has a VAT invoice for the fuel.  Relevant organisations should ask volunteers (and others) for a VAT invoice with their expenses claim.

All organisations managing volunteers:                                   Back to top

• should reimburse volunteers' expenses, including travel to the place of volunteering and meals taken while volunteering

• should have a written policy on volunteers' expenses, including:

• * the nature of the expenses that will be reimbursed
• * the maximum amounts that will be reimbursed
• * the procedure for reimbursing expenses

• should have a volunteers' expenses claim form, including:

• * the organisation's name
• * (if a registered charity) the organisation's charity registration number
• * the volunteer's name
• * the date of expenditure
• * the nature of expenditure and reason for it
• * the amount of expenditure
• * the signature of the volunteer
• * the signature of another person authorising the reimbursement
• * the cheque date and number (if paid by cheque) or signature of volunteer (if reimbursed by cash)
• * space for the relevant receipts or other documentation to be attached
• must keep records of all expenses paid to volunteers - for at least six full years.

Volunteer agreements                   
Many organisations provide their volunteers with a letter or written agreement setting out what is hoped for from the volunteer and what the organisation will provide to help the volunteer do the work.  To ensure that the relationship remains one of volunteering rather than employment, the document should:

• refer to intentions, expectations and privileges rather than rights and obligations
• avoid employment-related terms such as contract, sick leave, annual leave, disciplinary procedure, promotion, dismissal, worker, employed, employer and employee
• make it clear that the relationship is binding in honour only and is not intended to be legally binding.

There is no obligation to provide a volunteer agreement.  It may be helpful, especially for long-term volunteers or those taking on a major task, to clarify the expectations for both parties, but for other volunteers such agreements may be seen as unduly formal or restrictive.

Sample volunteer agreements                                              Back to top

These two samples are based on a document published by the Volunteering England.  They provide a starting point to help you draft and consult on an agreement that suits your organisation.  A volunteer agreement helps both the organisation and its volunteers by making expectations clear.  A volunteer agreement is usually one of four key documents, the others being a volunteering policy, volunteer role descriptions, and a volunteer handbook.

- Sample volunteer agreement 1:

Volunteers are an important and valued part of [name of organisation]. We hope that you enjoy volunteering with us and feel a full part of our team.

This agreement tells you what you can expect from us, and what we hope from you. We aim to be flexible, so please let us know if you would like to make any changes and we will do our best.

We, [name of organisation], will do our best:

• to introduce you to how the organisation works and your role in it and to provide any training you need. The initial training agreed is [title or nature of initial training].
• to provide regular meetings with your manager so that you can tell us if you are happy with how your work is organised and get feedback from us. Your manager's name is [name of manager].
• to respect your skills, dignity and individual wishes and to do our best to meet them.
• to pay your travel and meal costs up to our current maximum *.
• to consult with you and keep you informed of possible changes.
• to insure you against injury you suffer or cause due to negligence *.
• to provide a safe workplace *.
• to apply our equal opportunities policy
• to apply our complaints procedure if there is any problem

I, [name of volunteer], agree to do my best:

• to work reliably to the best of my ability, and to give as much warning as possible whenever I cannot work when expected
• to follow [name of organisation]'s, rules and procedures, including health and safety, equal opportunities and confidentiality.

* More details on these issues is provided in the volunteer handbook.

Note: this agreement is in honour only and is not intended to be a legally binding contract of employment.

This Volunteer Agreement describes the arrangement between [name of organisation] and you.

This agreement is binding in honour only, is not intended to be a legally binding contract between us and may be cancelled at any time at the discretion of either party.  Neither of us intend any employment relationship to be created either now or at any time in the future.

The aim of [name of organisation] is to [mission statement].

Your role as a volunteer is [state nature and components of the work] and starts on [date].  This work is designed to [state how the work benefits the organisation].

We wish to assure you of our appreciation of your volunteering with us and will do the best we can to make your volunteer experience with us enjoyable and rewarding.

[Name of organisation] commits to the following:

1.         Induction and training

To provide thorough induction on the work of [name of organisation], its staff, your volunteering role and the induction and/or training you need to meet the responsibilities of this role.  The Volunteer Handbook provides full details of the organisation.

2.         Supervision, support and flexibility

To explain the standards we expect for our services and to encourage and support you to achieve and maintain them;

To provide a named person who will meet with you regularly to discuss your volunteering and any successes and problems;

To do our best to help you develop your volunteering role with us.

3.         Expenses

To repay these expenses, following the procedures in the Volunteer Handbook:

• Travel to and from home to [the place of volunteering] and during your volunteering: see the Volunteer Handbook for rules on methods of travel and car mileage allowances.
• Meal allowance to a maximum of £[?] with a receipt. [To be eligible you must work around meal times or for at least [4] hours a day].
• Specialist clothing where this is required and provided by you.
• Actual cost of crèche, childminding fees or other dependant costs incurred in order to be available for voluntary work, to a maximum of £ [?] with a receipt.

4.         Health and safety

To provide adequate training and feedback in support of our health and safety policy, a copy of which is in the Volunteer Handbook.

5.         Insurance

To provide adequate insurance cover for volunteers whilst undertaking voluntary work approved and authorised by us.

6.         Equal opportunities

To ensure that all volunteers are dealt with in accordance with our equal opportunities policy, a copy of which is set out in the Volunteer Handbook.

7.         Problems                                                                   Back to top

To try to resolve fairly any problems, grievances and difficulties you may have while you volunteer with us.

In the event of an unresolved problem, to offer an opportunity to discuss the issues in accordance with the procedures set out in the Volunteer Handbook.

I [volunteer's name] agree:

To help [name of organisation] fulfil its [mission statement].

To perform my volunteering role to the best of my ability.

To follow the organisation's procedures and standards, including health and safety and equal opportunities, in relation to its staff, volunteers and clients.

To maintain the confidential information of the organisation and of its clients.

To meet the time commitments and standards agreed to, and to give reasonable notice so other arrangements can be made when this is not possible.

To provide referees who may be contacted, and to agree to a Criminal Records Bureau check being carried out where necessary.

Equality and diversity                    
 

Equality                                                                                 Back to top

Legislation makes it illegal (in most cases) to discriminate on the basis of race, gender, disability, religion or belief, sexual orientation, or age - in employment and the provision of services.  Age discrimination in employment is also generally illegal.

If people are paid for their work or receive payment in kind, men and women should receive the same for work of equal value.

Volunteering is treated in the same way as employment for the purposes of the Rehabilitation of Offenders Act.

The Equality Act 2006 established the Commission for Equality and Human Rights (CEHR) that would come into being in October 2007.  The CEHR brought together the expertise and resources to promote equality and tackle discrimination in relation to gender, gender reassignment, disability, sexual orientation, religion or belief, age and human rights.  The CEHR replaced three existing Commissions, the Commission for Racial Equality (CRE), Disability Rights Commission (DRC) and Equal Opportunities Commission (EOC).

Diversity means recognising and valuing variety among your volunteers. It means celebrating difference. There are numerous benefits of having a diverse volunteer ‘workforce'. For example, your organisation will:

• present a more welcoming face to volunteers, service users and the general public
• be more representative of wider society
• be more able to respond to the needs of your local community
• benefit from the new ideas and fresh approaches being generated by people from differing backgrounds, cultures, genders, ages and outlooks
• attract more customers and service users.

For these reasons it is wise to cast your net as widely as possible when looking for new volunteers, taking the trouble not just to attract people from similar backgrounds.

Further information

Volunteering England has published a number of free good practice guides:

• "Get it Right from the Start: Volunteer policies - the key to diverse volunteer involvement"
• "From Barriers to Bridges - a guide to overcoming barriers to volunteer involvement"
• "Volunteering for Everyone - A guide for organisations who want to include and recruit volunteers who have a learning disability"
• "Involving Ex-offenders in Volunteering"
• "Working with Volunteers: A management guide for refugee community organisations"

These can be downloaded free.                                              Back to top

Volunteering England has also published  ‘You cannot be serious! - a guide to involving volunteers with mental health problems' (2003, £7.95 including postage) see www.volunteering.org.uk/managingvolunteers/publications

The Commission for Equality and Human Rights website includes links to the Commission for Racial Equality (CRE), Disability Rights Commission (DRC) and Equal Opportunities Commission (EOC) www.cehr.org.uk

Selection and screening                   
In general, the good practice principles and stages used in the recruitment and selection of paid staff apply equally to the recruitment and selection of volunteers:

• equality of opportunity                         
• voluntary work outlines (similar to job descriptions and person specifications)
• person specification
• advertisement
• application form
• shortlisting
• interview
• references
• selection

However, it must be made clear at all stages that the recruitment and selection is of a volunteer, not an employee.

In many organisations the process will be more informal than that for employees, but this should not mean a lessening of good practice.  A poor volunteer appointment can be as damaging as a poor employee appointment.  More than one person should be involved in the process and decision making.  Written records should always be kept.

References

No organisation should be satisfied with only the information provided by the prospective volunteer.  Some form of independent verification is essential good practice.

Organisations do not have to take up references, nor is there any obligation on a former employer or any other person to provide one.  But if a reference is provided, the person giving it must exercise reasonable skill and care.  A person or an organisation is entitled to claim damages if they suffer loss because of negligent inaccuracies in a reference.

Some organisations ask for all references in writing; others prefer telephone references.  If taking up references by telephone it is sensible, for practical and equal opportunities reasons, to make a checklist of questions to ask and to keep a written record of points raised.

It is not sensible to accept, without further investigation, written references produced by a prospective volunteer, since the provision of such references is frequently a term of settlement for a contested dismissal from paid employment.  Such references are also open to forgery.

However, you should also be aware that some potential volunteers will not have been employed or employed recently.  To avoid creating barriers you will need to be flexible about from whom you will accept a reference.  As well as previous employers, you could think about suggesting tutors, social workers, probation officers, faith leaders, or anyone else with whom the potential volunteer has had a professional relationship. 

Some organisations decide that they want at least one reference to be a personal reference from a friend because these are the people who know the volunteer best.  Also think about the length of time you want the referee to have known the volunteer, if you ask for too long a period of time you will again be creating barriers for some people. 

Bear in mind that some people have never had to provide a reference before and can find very formal and off-putting.  Explain why you take references, what you ask and what you do with them.

Occasionally someone will want to volunteer for you who is completely unable to provide a reference (for example an asylum seeker who has not been in the country very long).  You will need to make a balanced assessment of the risks involved and decide whether there is a safe way of involving them.  You may be able to adapt some of your procedures (for example involving them only in group activities for the first few month while you get to know them better).  If you do this you will have to explain to the volunteer why they are being treated differently so that they do not feel singled out.

Screening                                                                       Back to top

Screening can only be a part of the selection process.  Being convicted does not mean that a person will commit the same offence again in the future.  Similarly, not having a conviction doesn't mean that offences haven't been committed in the past or won't be committed in the future.  Wider good practice in selection is essential.

Not all organisations will need to screen volunteers.  The need to screen will depend entirely on what the volunteer is doing and the client group that they are working with.  Except for organisations who are legally obliged to screen (for example under the Care Standards Act or the Protection of Children Act), the only legal obligation that organisations have to screen their volunteers is the ‘duty of care' that they have towards the people they work with.  Duty of care requires that you do everything ‘reasonable' within your power to protect others from harm.  So if an organisation involves volunteers working with vulnerable people, it could be argued that part of their duty of care is to screen volunteers. 

Organisations need to look carefully at their client group and volunteer roles to decide whether screening is necessary, and a risk assessment needs to be done to decide whether clients are at risk if volunteers are not screened.  In some situations, organisations may decide that even if their client group is vulnerable, the risks involved are minimal because of the way that they work.

The Rehabilitation of Offenders Act 1974

The Act gives ex-offenders the right not to reveal convictions in most situations when these have become spent after a rehabilitation period without a further offence.

For most jobs, the Act makes it unlawful for an employer to dismiss an employee or refuse to employ a person because they have a spent conviction.

The Act defines some jobs and occupations which are excepted from the Act and where, if asked, the person must declare the conviction even if it is spent, and where the employer can refuse to employ the person or can dismiss them because of the conviction.

The Act applies to convictions in the UK, and to convictions abroad if the offence would also be an offence in the UK.  Where convictions must be disclosed, this applies only if the person is asked.  There is no obligation to reveal any information if not asked.

Guides on the Rehabilitation of Offenders Act, including advice for employers, are available free from www.nacro.org.uk/publications/adviceleaflets.htm and www.crb.gov.uk/Default.aspx?page=411

Part V of the Police Act 1997 allows organisations in specified circumstances to ask prospective employees and volunteers to apply for a criminal records check.  There are safeguards to protect civil liberties and the rights of ex-offenders under the Rehabilitation of Offenders Act 1974 are maintained.  The old system of ‘police checks' no longer exists.

There is no legal requirement to vet all volunteers.  The decision to get a CRB check should be based on either a thorough risk assessment of the role to be performed by the volunteer and the extent to which this will bring them into contact with children or vulnerable adults; or if the voluntary work is to be carried out on someone else's premises whether it is a requirement of that organisation for a check to be done in order to comply with the legislation that governs their business.

In order for an organisation to receive a Standard and Enhanced Disclosure it must be registered with the CRB, or go via a registered umbrella body, and have the consent of the job applicant or prospective volunteer.  Generally, organisations that apply for less than 100 Disclosures a year must go via a registered umbrella body.

A volunteer is defined as "a person who is engaged in any activity which involves spending time unpaid (except for travelling and other approved out-of-pocket expenses), doing something which aims to benefit some third party (individuals or groups) other than or in addition to close relatives".  Some people can be referred to as volunteers, but do not actually meet the CRB's criteria to get a free check.  This is because they may receive, or expect to receive, a benefit, such as remuneration or a credit towards a qualification.  For example, checks for students on training placements; people on work placements; and foster parents/carers are not free.

The CRB will send a copy of the Disclosure to the individual and a copy to the registered organisation.  The Disclosure will list information about any convictions and may include other information held by the police or other public bodies.  If the individual believes that the information is wrong, the individual must take this up direct with the CRB.

The organisation should use the information in the Disclosure to make a decision within its agreed polices.

The CRB does not endorse the use of portability (the re-use of a Disclosure obtained for a position in one organisation and later used for another position in another organisation), due to the risks involved. Organisations that choose to accept a previously issued Disclosure do so at their own risk.  Any organisation wanting to pass a Disclosure or the information within a Disclosure on to another organisation must have the explicit agreement of the individual.

A Disclosure produced by an individual should not be accepted - it may be false or have been altered.  It will also not include any information that is not to be disclosed to the individual, for example information about a current police investigation.

A Disclosure carries no period of validity.  The information that it contains reflects the position as of the date of its issue.  Organisations need to consider how often to ask employees and volunteers to reapply for a criminal records check. 

Criminal Records Bureau, PO Box 110, Liverpool L69 3EF
CRB telephone Information Line: 0870 90 90 811

The Protection of Children Act 1999 requires regulated child care organisations to check new workers (paid and unpaid) involving regular contact with children prior to starting work against the PoCA List (unsuitable people to work with children in a child care position)

The Act also requires regulated child care organisations to refer the names of individuals involved in misconduct for possible inclusion on the PoCA List.

A Standard or Enhanced Disclosure from the Criminal Records Bureau - where the person will be working with children - includes any information from the PoCA list and List 99.

A separate but similar PoVA (Protection of Vulnerable Adults) List exists but currently only applies to registered service providers of care homes, domiciliary care agencies, adult placement schemes, and employment agencies and businesses who supply care workers to these providers.  It is possible in some cases for an individual to be included in both the PoCA and the PoVA list following a referral to either one of them. 

New vetting and barring scheme

On 8 November 2006 the Safeguarding Vulnerable Groups Act received royal assent.  The Act lays the foundation for a new vetting and barring scheme which will be phased in from autumn 2009.  The new scheme was a key recommendation of the Bichard inquiry into child protection procedures in the light of the conviction of Ian Huntley for the murder of Jessica Chapman and Holly Wells.

The timescales for the phasing in have changed a number already and pushed back a year.

The responsibility for taking barring decisions will lie with a new Independent Barring Board (IBB) which will be an independent statutory body.  The application processes for vetting and barring decisions will be run by the Criminal Records Bureau (CRB).

A vetting and barring check will show if the person is "subject to monitoring".  This means that the IBB found that there is no known reason why the applicant should not work with children and/or vulnerable adults, and that the IBB would review its barring decision if relevant new police or referral information, became available. 

A vetting and barring check will not give details of the person's full criminal record.  Organisations may wish also to apply for a CRB Enhanced CRB check, where legally entitled to do so, to obtain a person's full criminal record.  In some sectors this may be mandatory.

It has now been announced that these changes will be phased in over a number of years, starting on 12^th October this year.

http://www.isa-gov.org.uk/pdf/VBS_Stakeholder_newsletter-April2009.pdf should take you to the newsletter of the ISA (Independent Safeguarding Authority) which outlines the changes that will take place, and states that general guidance will be available from the end of this month, and that sector specific guidance (including ‘volunteering') will be issued shortly afterwards.

For those of you who just want the timetable:

From October 2009                                                      Back to top

• There will be two barred lists rather than the existing three, and these lists will be administered by one organisation: The Independent Safeguarding Authority
• There will be a wider range of activities from which people can be barred
• There will be a new duty for organisations to share relevant information about individuals who may pose a threat
• New criminal offences will come into being for barred individuals who seek work with vulnerable groups and for employers who take them on.

From 26^th July 2010

• All new entrants to roles working regularly with vulnerable groups and those switching jobs to a new provider will be able to register with the ISA and be checked.
• Employers can subscribe or register an interest in an individual's ISA-registration status.
• The mechanism that keeps employers informed of changes in registration status will also be introduced

November 2010

• The legal requirement for employees to register with the ISA, and for employers to check their status, will come into force.  However, it appears that this will be phased in: firstly those who have not been CRB checked, then those with the oldest CRB checks and so on, ending with those who have been most recently checked.

Those who are really interested in the detail of how this is going to happen might want to register with the ISA to receive the updates directly.

Regulated activity includes work that involves;

• close contact with children and/or vulnerable adults by virtue of the type of activity employees carry out frequently/ on three or more days in a month/overnight (e.g. supervising children; caring for vulnerable adults);
• the setting in which they work if they have other forms of contact with children and vulnerable adults which takes place frequently or on three or more days in a month (e.g. a school or care home); or
• the status and authority conferred by a particular position (eg charity trustee).

Organisations taking on an individual in a regulated activity will commit a criminal offence if they fail to check the status of an applicant, employee, or volunteer.  It will also be an offence to permit an unsuitable individual to work for any length of time (paid or unpaid) in an activity from which they are barred.

Controlled activity includes;

• support work carried out frequently or on three or more days in any 30 day period in general health settings, (eg a GP's surgery or a general hospital), FE settings (eg local further education college) and adult social care settings (eg day centres); and
• work carried out frequently or on three or more days in any 30 day period for specified employers (including local authorities, Ofsted and QCA) which gives a person the opportunity for access to sensitive records about children, including health, education and social services records.

Organisations taking on an individual in a controlled activity will be required to check the status of an applicant, employee, or volunteer.  But, providing sufficient safeguards are put in place, the provider can permit a barred person to work in controlled activity.

It is essential to note that checking an individual's status in the Scheme alone will not be enough to implement safe recruitment practices.  Obtaining appropriate references and speaking to previous employers are just two steps that can also help determine whether an applicant is suitable to work with children or vulnerable adults.

Good practice                                                              Back to top

Rather than relying solely on police or criminal records checks, it is more important to develop the best possible procedures for recruiting, selecting, inducting and supervising employees and volunteers, and to ensure there are clear and well known procedures for complaining if any worker is acting in unsuitable ways. 

These procedures should apply not only to those who will work with under 18s, but to anyone who will work with vulnerable adults, be in sensitive situations with adults, or have access to money or valuable property.

Good procedures will not provide a guarantee against being found negligent if harm ever does come to a child or vulnerable adult or if money or property is misappropriated, but the use of detailed procedures would be evidence of good practice and management.

The following guidelines are adapted from the Home Office's ‘Safe from harm? Code of practice for safeguarding the welfare of children in voluntary organisations in England and Wales' (1993):

• the organisation should have policy statements on safeguarding the welfare of clients, access to money and property, and other matters where abuse, fraud or breach of trust might occur
• the work of the organisation should be planned in ways which minimise the risk of abuse, fraud or breach of trust
• all clients/users should be clear about how to complain to an independent person if they are unhappy about a worker. If clients are unable, because of age or disability, to make their own complaints, additional safeguards may be needed to monitor workers. All allegations should be taken seriously and be properly investigated, with immediate action taken if required
• the agreed procedures for protecting people or property should be applied to all workers, whether paid or unpaid, and to agency workers and temporary or locum workers
• workers should understand what their work involves, and the limits
• applicants for all posts - whether paid or unpaid, permanent or temporary, part-time or full-time - should be asked at application or interview stage about previous convictions. If the post if exempt under the Rehabilitation of Offenders Act 1974 it should be made clear that all previous convictions, even those which are spent, must be disclosed. If the post is not exempt it should be made clear that only unspent convictions should be disclosed
• the organisation should take up at least two references, including one reference from a person who has experience of the applicant's paid work or volunteering in a comparable situation. This is especially important for work with children
• the organisation should use (if applicable and available) appropriate vetting services (eg the Criminal Records Bureau)
• all applicants should be interviewed, with the interview used to explore their relevant experience
• all workers should have an induction programme during which they are clearly told what is expected of them, what records must be kept and how their work will be supervised
• supervision procedures and communication channels should encourage open discussion
• the organisation should have, and all workers should be aware of, guidelines on how to deal with the disclosure or discovery of abuse, fraud or other serious matters
• ongoing training should be provided on prevention of child abuse, prevention of other forms of abuse of clients, financial controls, security and similar matters.

Insurance                   
All volunteer-involving organisations are under a duty of care to protect:

• the volunteers                                                           Back to top
• anyone with whom the volunteers are working
• anyone who may be affected in any way by any act or omission of the volunteers

Insurance will not prevent things going wrong, but can spread the burden of risk and compensate if things do go wrong.  Insurance policies are only valid if the premium has been paid and the activities being undertaken are completely within those that have been notified to the insurance company.  Every organisation should check its insurance cover at least once a year.

All volunteer-involving organisations should have an insurance policy that covers volunteers.  There are several different types of policy, so it is often confusing to work out which is the most appropriate. 

Basically, volunteers should be covered under employer's liability insurance and public liability insurance and, depending on the type of work involved, the organisation may need professional indemnity insurance as well.  Policies should explicitly mention volunteers because they may not automatically be covered. 

Don't forget that organisations will also need insurance cover for any buildings and contents (including those used away from the organisation's premises).

Covers paid employees in the event of accident, disease or injury caused or made worse as a result of work or of employer's negligence.  This insurance does not automatically cover volunteers.  There is no obligation to extend the policy to cover volunteers, but it is good practice to do so.  The policy must explicitly mention volunteers if they are to be covered by it.

Also known as third party insurance it protects the organisation for claims by members of the public for death, illness, loss, injury, or accident caused by the negligence of the organisation.  Public liability insurance generally covers anybody other than employees who come into contact with the organisation, covering them against loss or injury caused by negligence of the organisation if they are not covered under the employer's liability insurance. 

It also protects for loss or damage to property caused through the negligence of someone acting with the authority of the organisation.  The policy must explicitly mention volunteers if they are to be covered by it. 

In some circumstances a volunteer could be sued as an individual for damage caused to a third party.  The policy must explicitly mention this if volunteers are to be covered by it.

Professional Liability                                                              Back to top

Professional liability, professional indemnity errors and omissions or malpractice insurance covers the organisation for claims arising from loss or injury caused by services provided negligently or without reasonable care.&nbs