How are volunteers protected by the Equality Act 2010?

10 October 2010
How are volunteers protected by the Equality Act 2010?

For the most recent position in employment law, see our 2 February 2011 blog post.

One of the less scrutinised elements of the Equality Act 2010 is how it will protect volunteers. We look at look this issue in detail to work out how best organisations can incorporate these provisions.

What is a volunteer?
A volunteer is someone who offers to work free-of-charge on a goodwill basis. They are under no obligation to work and they are under no obligation to be paid for their work. If they are reimbursed expenses, it is strictly for the costs incurred through volunteering - such as their food or travel.

How were volunteers protected from discrimination before the Equality Act 2010?
Previously, volunteers had no protection either from discrimination or unfair dismissal, unless they could show at tribunal, that they were actually a worker or an employee. To count as a worker or employee, the volunteer must show that a contract existed between themselves and the organisation. Where a volunteer successfully argued that there was a contract and as such, counted as a worker or an employee, they would be entitled to receive National Minimum Wage - and also have rights not to be discriminated against or dismissed unfairly.

A contract is not only a written document - it's more a way to describe a relationship: the individual works and in return receives some pay or benefit - which looks and feels as though it creates a binding agreement. In practice, the payment or benefit (also called "consideration") doesn't have to be a lot. It can be small - such as training unrelated to how the person volunteers or some money provided beyond what the volunteer spends in expenses. It's only been through claiming they are workers or employees that volunteers have been able to receive legal protection from discrimination at work.

How does the Equality Act 2010 protect volunteers?
Understandably as volunteers weren't protected by discrimination law before the Equality Act 2010, many would not expect it to now - particularly since there is no mention made of volunteers in the Equality Act itself. However the Equality and Human Rights Commission, which produces statutory and non-statutory guidance for the Equality Act, has indicated that volunteers would be protected as service users: it states that in involving volunteers with their organisation, organisations are effectively offering them a service.

What does this mean in practice?
If you provide a service to the public (whether that's as a community centre, an advice-provider, a shop, a club, a website, a care home or a private club/association with over 25 members, to name but a few) the Equality Act 2010 applies to your services. Volunteers would be among the service users protected from discrimination.

The Equality Act 2010 protects service-users on the grounds of their:

  • Disability
  • Gender reassignment
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation


Service users are protected from the following kinds of discrimination:

  • Direct discrimination (this includes discrimination by association and discrimination by perception)
  • Discrimination arising from a disability
  • Indirect discrimination
  • Harassment
  • Victimisation
  • Failing to make reasonable adjustments

Service users are also explicitly protected from discrimination if they are breastfeeding.

How should volunteers be treated in comparison with employees?
Service users are not protected in so many ways as paid staff are. Paid staff are protected from discrimination on the grounds of their age and marriage/civil partnership -whereas service users are not. Similarly paid staff are protected from harassment by a third party.

In practice, you may wonder whether it is sensible not to protect your volunteers from these kinds of discrimination. In particular, it would seem inequitable to not protect your volunteers from worse treatment because of their age - or to allow them to be treated unfavourably because they are married or in a civil partnership. Similarly, if your volunteer is being harassed by a service user or client (in the case of harassment by a third party), you would want to make sure that action is taken to protect your volunteers. At the very least, you have a responsibility to look after volunteers' wellbeing but it's important to volunteer morale, for volunteers to feel that they are treated fairly. Similarly, what volunteers say about your organisation is important to its reputation. If you value and include your volunteers, you will attract and retain the best volunteers. Lastly, since the Equality Act is still very new, exercising good practice is a clear way to ensure that you are fulfilling your duties as an organisation.

Conclusion
Organisations have often chosen to treat their volunteers more generously than the law provides. Now that the Equality Act 2010 introduces legal protection of volunteers from discrimination, this is a good way to ensure that your organisation is legally compliant. It could be worth stating in your policies that you do not intend to create a contractual relationship with your volunteers, but that as a matter of respect and dignity, you believe that volunteers deserve to be treated fairly and inclusively wherever reasonable. In some circumstances, this may involve emulating or taking a leaf from the law laid down to protect paid staff. Additionally, if your staff are properly trained on discrimination so that they know what discrimination looks like (both internally and public-facing), this will minimise the likelihood of complaints later down the line - and encourage people to highlight issues that may need looking into currently. Accurate staff training records will demonstrate one way in which you have delivered your duties as an organisation.

For further discussions on the Equality Act 2010, see our previous blog posts:
The Equality Act 2010: what does it mean in practice?
Updated HR policy checklist for the Equality Act 2010

The HRBird blog is written in good faith but should not be taken as an authoritative statement of the law. For comprehensive guidance, see:

The Equality and Human Rights Commission:
How your organisation should treat volunteers
What equality law means for your business, when you're providing goods, facilities or services to the public
What equality law means for your voluntary and community sector organisation


The Government Equalities Office:
The Equality Act 2010: what do I need to know? A quick summary for voluntary and community sector service providers
There are also a number of other guides here on discrimination by association and perception, religion or belief in service provision, harassment in service provision and positive action in service provision.

If you'd like training on the Equality Act 2010, delivered to your organisation, Acas provides an in-house training service across the country. For information see, http://www.acas.org.uk/index.aspx?articleid=2030

Finally, if you have any doubts about how the Equality Act 2010 affects you, call the Equality and Human Rights Commission advice line who have trained advisors on hand to assist.

Please note that HRBird by its very nature offers general information. If you're looking for advice specific to your situation, speak to an HR professional or solicitor. Got a question on staff or volunteers? To submit an anonymous query for the HRBird blog, contact us. 

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