Charity Resources: A Trilogy of… Lots?

‘I may not have gone where I intended to go,
but I think I have ended up where I needed to be.’

‘I love deadlines.
I love the whooshing noise they make as they go by.’

‘DON’T PANIC!’

I am a fan of Douglas Adams.

He was a great author, writer, humorist, and all round good egg.

So in honour, of Douglas Adams famous Trilogy in Five Parts, I’m starting my own trilogy, on Charity Resources.

And whilst it might  not be as funny as Hitchhikers, it does share a certain ambiguous numeracy. In that I’ve no idea how many there will be. 42 might be appropriate?

But, following Douglas Adam’s lead, I’m going to start at the beginning. And hope that this won’t be regarded as a bad move.

My first Charity Resource page is on charity law.

I hope this series will be helpful.

But as the great man once said:

“You live and learn.
At any rate, you live.”

Governance Workshop 14th November 2013

Governance Workshop Thurs 14th November 2013

I am delighted to invite you to our Governance Workshop!

Governance Workshop Info – November 2013

We are partnering with the Charity Commission to host this event. The details are:

Date: Thursday14th November 2013 from 10am to 3:30pm
Venue: Ascension Trust, Alpha House, Alpha Place, Garth Road, London SM4 4TQ
Cost: £15 with lunch provided for every person.

The Workshop is designed to help local charity trustees, staff and volunteers better understand the role of a trustee, the importance of good governance, the various legal, financial and policy issues to consider, and it will be a chance to meet and talk with various local trustees about their personal experiences.

Highlights include:Charity Tax Group

Rev Les Isaac OBE, CEO, Ascension Trust speaking about Trustees as Leaders; Contributions from the Charity Commission and Charity Tax Group; and AT General Counsel, Andrew MacKay, covering legal and policy issues.

Here are some of the reviews from the last Workshop:

“I found the last workshop very helpful and definitely worth investing the time to attend.”

“It was very helpful and something that would be of benefit to all trustees, especially if they have had little or no involvement as trustees in other charities. It provided a good overview. I think it was run extremely well and each session valuable.”

“It was well organised, good food. It was interactive which I think is great giving people time to digest the information being presented and reinforce it through discussion.”

For more information, just email a.mackay@ascensiontrust.org.uk, tweet @BetterCharity or call 0208 330 2809.

I look forward to seeing you there,

Andrew

Governance Workshop Thurs 16th May 2013

Dear friend,

Governance Workshop Thurs 16th May 2013

I am delighted to invite you to our Governance Workshop!

We are partnering with the Charity Commission to host this event.  The details are:

Date: Thursday 16th May 2013 from 10am to 3:30pm
Venue: Ascension Trust, Alpha House, Alpha Place, Garth Road, London SM4 4TQ
Cost: £15 with lunch provided for every person.

The Workshop is designed to help local charity trustees, staff and volunteers better understand the role of a trustee, the importance of good governance, the various legal, financial and policy issues to consider, and it will be a chance to meet and talk with various local trustees about their personal experiences.

Highlights include:
Rev Les Isaac OBE, CEO, Ascension Trust speaking about Trustees as Leaders
Graham Divers, the Charity Commission speaking about Good Governance
Andrew MacKay, AT Legal and Policy Advisor, covering legal and policy issues.

Here are some of the reviews from the last Workshop:

“I found the last workshop very helpful and definitely worth investing the time to attend.”

“It was very helpful and something that would be of benefit to all trustees, especially if they have had little or no involvement as trustees in other charities. It provided a good overview. I think it was run extremely well and each session valuable.”

“It was well organised, good food. It was interactive which I think is great giving people time to digest the information being presented and reinforce it through discussion.”

For more information, just visit the Ascension Trust website, email policy@ascensiontrust.org.uk or call 0208 330 2809.

I look forward to seeing you there,

Best regards,

Andrew

When is a volunteer not a volunteer?

(Legal bit: the following is not formal legal advice, and should not be relied on as such.  Legal bit over.]

Riddle me this: when is a volunteer not a volunteer?

The answer is of course simple. When they’re not volunteering.

But of course, life is never quite that simple.

So brace yourself, here’s some law to chew over…

Volunteer or Worker

There is no standard legal definition of volunteer, but the Criminal Records Bureaux defined a volunteer as “a person engaged in an activity which involves spending time, unpaid (except for travel and other out of pocket expenses), doing something which aims to benefit some third party other than or in addition to a close relative.”

An employee is defined as “an individual who has entered into or works under… a contract of employment”, where a contract of employment means “a contract of service… express or implied… oral or in writing.” (section 230(1) and (2), Employment Rights Act 1996).

A worker is defined more widely, as an individual who works under either a contract of employment (as above) or any other contract, express or implied, oral or in writing, where the individual performs personally any work or services for another party but is not a client or customer.

There are a number of important factors that need to be present for an individual to be a worker, being that there is personal service; that the “employer” is not a customer; and that there is a mutuality of obligations.

Volunteer Legal Status Ambiguous

BWB Solicitors, leading charity advisors has published guidance about this.

They note that “the legal status of volunteers and interns is not clear cut, as there is a vast range of different types of relationships, from the purely voluntary to those that are clearly contractual and those in between, which are difficult to define. This ambiguity makes it difficult for organisations taking on volunteers and interns to appreciate any legal obligations that they may owe to them.”

 The Practical Law Company have also provided style volunteer agreements, noting that “where the volunteer is not otherwise entitled to the national minimum wage, organisations should limit payment to volunteers to out-of-pocket expenses only, incurred as part of the volunteer role and evidenced by receipts.”

 The National Council for Voluntary Organisations (“NCVO”) also states in its guidance to charities that “paying ‘expenses’ automatically, without justification, can be seen in tribunals as the equivalent of paying a salary. The safest course is to reimburse only actual expenses, preferably against receipts.

A example from a recent Employment Appeal Tribunal case might also help.  Mrs Chaudri did administrative work with the Migrant Advisory Service for two years and claimed unfair dismissal and sex discrimination when her role was terminated.

She worked four mornings a week and was paid volunteer’s “expenses” of £25 (increased to £40) a week, even though she incurred no expenses. She was also paid when on holiday or sick. The Employment Appeal Tribunal found that the payment was clearly for work and not reimbursement.

National Minimum Wage

Employees and workers are entitled to a number of rights which volunteers are not, including the national minimum wage (“NMW”)and annual leave.  Specifically, the National Minimum Wage Act 1998 requires employers to pay the NMW to all ‘workers’.

Volunteers will only be entitled to be paid the NMW if they are workers. Volunteers will not fall within the definition of ‘worker’ only where they have no form of contract of employment or contract to perform work and provide services and where they receive no financial remuneration or benefits in kind for providing their services.

Volunteer workers are a category of worker who work for charities, voluntary organisations, associated fund-raising bodies and statutory bodies. Voluntary workers (as opposed to volunteers) are not entitled to the NMW only if the following conditions are met (S.44(1)(a)&(b) of the National Minimum Wage Act 1998):

  1. They receive no monetary payment other than reimbursement of expenses actually incurred or reasonably estimated as likely to have been incurred in the performance of their duties; and
  2. They receive no benefit in kind other than reasonable subsistence or accommodation.

The consequences for an organisation of failing to pay the NMW to volunteers or interns who are in fact workers and therefore entitled to the NMW are potentially serious. Not only could the organisation be required to pay up to six years of backdated NMW to the workers, but it may be liable for a criminal penalty if it has wilfully neglected to pay the NMW.

Implications for Charities

A volunteer can be seen as a ‘worker’ only where there are a number of factors present, being: personal service, that the “employer” is not a customer, and that there is a mutuality of obligation.

There are a number of practical suggestions given by BWB Solicitors to reduce the risk of volunteers being a classified as ‘workers’.

Firstly, get a volunteer agreement in place confirming that the relationship is based on mutual understanding and is not a contract of services or employment.

Secondly, avoid making payments to volunteers that could be construed as wages, with payments to cover actual expenses being clearly identified as such and ideally reimbursed against receipts.

Conclusion

If you have any questions let me know: bettercharityblog[at]gmail.com or @BetterCharity.

And if you got this far without falling asleep, well done!..

 

CRB: A Time of Change…

There have been some important changes to the CRB checking service. Do you know where you stand?

The changes to the law (the Safeguarding & Vulnerable Groups Act 2006 & the Police Act 1997 Regulations) are being introduced through the Protection of Freedoms Act 2012.  I have been working closely with the Churches Child Protection Advisory Service (“CCPAS”) to understand the implications.

These changes include

  • a new definition of ‘Regulated Activity’;
  • statutory guidance on the supervision of children;
  • a minimum age at which someone can apply for a CRB check;
  • repeal of registration and monitoring;
  • repeal of additional (brown envelope) information;
  • repeal of controlled activity;
  • a more rigorous relevancy test for the police when they release locally held information through an Enhanced CRB check;
  • a new right of review for applicants of information released by the police; and
  • everybody within the pre-September definition of regulated activity will remain eligible for Enhanced level CRB checks, whether or not they fall within the post-September definition of regulated activity, but they will no longer be eligible for list checks.

The changes brought in by the act will also affect the work carried out by the Independent Safeguarding Authority (ISA):

  • most people will be barred from working with children and/or adults only if they have engaged, are engaging or might in the future engage in Regulated Activity; and
  • greater powers to review a person’s inclusion on a barred list.

Some things will stay the same:

  • referrals to the ISA should continue to be made;
  • organisations must not employ someone in Regulated Activity whom they know has been barred by the ISA;
  • regulated activity still excludes family arrangements; and personal, non-commercial arrangements.

If you would like to discuss the changes, why not get in touch: andrewkmackay[at]gmail.com.