Encouraging sufficient people to volunteer and in particular encouraging new generations of volunteers is a perennial problem. As budgets continue to be squeezed and charities are being expected to bridge gaps in public services, the reliance on volunteers continues to increase.
The concept of incentivising volunteering to increase uptake is attractive, but not new. Various volunteer schemes that push the traditional boundaries of volunteering have been trialled for a number of years. The schemes are successful and are increasing in prevalence. The incentives can include access to entertainment or providing vouchers, discounts or credits which can be spent locally. The schemes provide incidental benefits to those that volunteer by tackling social isolation, improving health (especially mental health) and providing access to working environments. In turn they generate significant benefits for communities and encourage community cohesion.
But, how do the volunteers view the incentives? Do they regard themselves as being rewarded for their volunteering? This gives pause for thought. Is this not what incentivising is becoming? Payment in incentivised clothing?
While there is no legal definition of a volunteer, the principles that underlie what it is to be a volunteer are well established. Volunteering covers a wide range of activities from shaking a tin to advising clients on legal rights. It means different things to different people. It can be a personal cause or a way to gain a particular experience.
By its very nature there is an absence of legal obligation – the volunteer is not required to volunteer – so volunteering therefore sits outside of the employment rights framework. The legal status of a volunteer is defined not by what it is, but by what it is not. There is an absence of a contractual relationship between a volunteer and the organisation for which they volunteer.
A contract requires that there is an intention to enter into a legally binding relationship and that there is consideration (ie something of value which passes to the person who performs the contractual obligations). Any such contract does not need to be written down, neither does it need to have been expressly agreed between the parties. A contract can arise simply through the conduct of two parties towards one another.
UK legislation protects the rights of individuals if there is a contractual relationship between that individual and an organisation, or if there would have been such a relationship if the individual was a successful applicant for a job. It is therefore possible for individuals who volunteer to be protected by existing legislation or to become protected by the way in which the relationship between the individual and the charity develops.
The starting point for charities who are assisted by volunteers is that there should not be a contractual relationship because there is no intention by the charity to enter into a legally binding arrangement and no consideration is provided. All guidance on volunteering is clear that no payment other than out of pocket expenses should be received by a volunteer. However, relationships develop over time and, in the event that a legally binding relationship is found to be present, would an incentive be the consideration to form the contract? In some instances the answer would be yes.
There is a school of thought that the types of incentives that are being offered to volunteers are not necessary or are changing the very nature of volunteering. We are reminded that the motivation of a volunteer is very different to that of an employee or worker. The excellent contribution that volunteers make to organisations should unquestionably be recognised, but a thank you, being “volunteer of the week” or being invited to a Christmas meal can be enough reward. However, it seems the schemes work. They increase the profile of volunteering and there is anecdotal evidence to suggest they increase volunteering, certainly in the short term.
I am in no doubt that the schemes have a remarkable impact on individual lives and derive benefits for local communities, but I wonder if they may be repairing the fishnet of the health and social care system rather than being solely another way of volunteering. While the public benefit of the schemes means that they are unlikely to be challenged on public policy grounds, and indeed the incentive that the volunteers receive may mean that they are happy with their lot and unlikely to bring a claim, it does feel like somewhat of a ticking time bomb in the existing legal framework.
If charities are considering adopting an incentive scheme they should give careful thought to the nature of the incentive to thoroughly assess whether any risks that adopting the scheme may present outweigh the benefits that the scheme will undoubtedly provide.
Victoria Cook is a senior associate at Bates Wells Braithwaite
