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Posted By Kim Sunley
Any help with the following scenario.
An employee is carrying out voluntary work for a small voluntary organisation (external to the employees workplace). You as an employer have sanctioned this work and the vountary work is closely connected with the employees professional development. Neither the employer organisation or the employee are being paid by the voluntary sector organisation but work may be done both in and out of working hours.
Where do the responsiblities and liabilities lie?
Does the employer still have section 2 duties (I suspect the answer is yes if the employee is doing the voluntary work in work time). I understand that the voluntary organisation would have section 3 duties but what about the persons employer?
answers on a post card please
thanks
Kim
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Posted By Andy
Kim,
To start the debate off, in my opinion, I would say that the employer has no responsibility for the employee whilst he is carrying out volunteer work, even though it may be during times when he would otherwise have been working.
The normal definition of an employee is someone who is carrying out activities from which the employers undertaking would benefit; hence long standing or site based contractors should be seen as employees in terms of your SMS.
The only possible grey area is if you have requested or perhaps even suggested that he does this volunteer work in aid of his current role.
You may need to look at working hours if he doing significant work as well as his normal day job, but it should be in his terms and conditions that he lets you know if other work interferes, and to ask him and get a written response should cover you.
Any info from the volunteer sector guys and gals?
.
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Posted By Mark Talbot
Ah ... but as the volunteering is sponsored/supported by the employer [within work time, organised and coordinated too probably?] and is linked to prfessional development ... it is very easy to categorise it as a work activity. Payment is not the criteria here.
I'm not going to trawl the case law, but it is out there.
There is even guidance on the HSE site from memory - have a quick look.
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Posted By Smurfer
... and I suspect the volunteer organisation would have section 2 responsibilities towards the volunteer rather than section 3 (but i have been known to be wrong...) if the volunteer is carrying out the work for the benefit of the volunteer organisation.
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Posted By Cathy Ricketts
There are all sorts of if and but factors here - does the voluntary organisation have employees of their own or is it solely staffed by volunteers. The best way around these sorts of situations is to apply best practice all round and share common ground by helping the voluntary organisation raise their standards for health and safety to ensure everyone's safety and then you shouldnt have to worry too much about who has what duty.
Although "pure" voluntary organisations dont fall under the HASAW Act they still have a duty of care and therefore the similar principles and practices apply.
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Posted By Gavin Reeve
For civil liability, try Mersey Docks & Harbour Board vs Coggins & Griffiths 1947, where MDHB were held vicariously liable for actions of their employee whilst on loan to C&G. I knew the NEBOSH would come in handy one day...
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Posted By Ken Taylor
Sounds a bit like some work experience arrangements in schools. Section 2 duties all round would be my guess. It doesn't have to be paid work for HASAWA to apply.
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Posted By J Knight
There is case law which would apply to the voluntary employer. The Prince's Trust was prosecuted under s2 when a wall fell on and killed voluntary workers, there is another case but I can never remember it; we certainly assume that we have s2 duties as, as has been said, payment is not the sole criterion for judging 'employment'. As for the sponsoring organisation, I wouldn't expect them to have much in the way of duty, though it would depend very much (as has already been said) on the terms of the 'volunteering',
John
PS IANAL
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Posted By Michael Hayward
For sect 2 to apply the person must be an employee i.e a person working under a contract of employment. If he is a volunteer then he is a sect 3 - a person not in their employment. Interestingly as a volunteer he is not subject to sect 7 or Reg 14 managementb Regs
I work for a charity and we were nicked some time ago regarding an incident twith a volunteer - and that was under sect 3
Mick
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Posted By J Knight
Mick,
See my previous post. The Prince's Trust were done under s2, believe me, and there is at least one other case. Whether a 'contract' exists is down to the facts of the individual case. One of our in-house lawyers, for example believed (sadly he died last weekend) that requiring a volunteer to be trained would create a contract of employment. You may have been done under s3, but it is down to the facts, and could be different in different circumstances with different forms of volunteering. As I recall the specific circumstances of the Prince's Trust case included the payment of out-of-pocket expenses and the provision of meals and accommodation (since the work was being carried out at a remote location in Orkney). In the eyes of the judge this created a relationship of mutuality amounting to a contract; other arrangements could also amount to a contract. So be careful,
John
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Posted By Adrian Watson
Dear All,
There appears to be some confusion. The employer has no responsibility as no control over the work and it's not in the course of his employment.
The charity has responsibility under s3.
Regards Adrian
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Posted By J Knight
Adrain,
Once again, please see my first post where I do state that the employer probably has no duty, and I repeat, s3 could apply, so could s2; this isn't speculation, it has been applied in cases involving volunteers, as I keep on stating,
John
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Posted By Kim Sunley Thanks for all your comments/thoughts: just come across the volunteering england website. www.employeevolunteering.org.ukIf you click on the health and safety section they state that if it is "...a employer sponsored section. Therefore employers are bound by a duty of care to do everything reasonable to protect their employees from coming to harm whilst volunteering." They define employee volunteering as a three way partnership between the employer, employee and the reciever of these volunteers. Our scenario where an NHS employed mental Health worker is doing work with a mental health related voluntary section which has been agreed by her manager and the contact for the voluntary organisation I guess is employer sponsored.
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Posted By Michael Hayward
I don't know the details of ythe Princes Trust Case - but in our case the HSE turned up with two prosecutions - one under sect 2 and one under sect 3. The judge threw out sect 2 because the volunteer member was not an employee - and accepted the charge under sect 3
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