Diverse Hands Holding The Word Volunteer

As the general election campaigning gets into full swing ahead of the big vote on 7 May 2015 all of the major parties are pulling moves to attract the attention of voters. It’s fair to say that HR issues are not always top of the list when it comes to manifesto pledges but one policy announcement made by David Cameron last week may have major implications for the UK workforce and its employers. David Cameron is pledging to give all public sector workers and anyone working in a company with more than 250 staff, three days’ paid leave each year to undertake voluntary work.

Now we all know that many pledges are made at election time and not all of these policies will necessarily come to fruition even if David Cameron’s party remain at number 10 come 8 May but a law requiring employees to allow staff three days’ paid leave each year to undertake voluntary work does throw up a few interesting employment issues.

1. What is meant by ‘voluntary work’?

Election pledges are generally short on detail and focus on the ‘big’ statement but the concept of an employer being required to pay an employee to take time off to undertake voluntary work does lead to the question of what will constitute voluntary work under this law. Would it be restricted to work for registered charities or could it include undertaking DIY on a relative’s house? This would be voluntary work for the benefit of others! The ‘Big Society’ ideology aims to make a difference in the community but there will obviously need to be clear legislative guidance as to what will fall within the definition of ‘voluntary work’ in order to avoid misuse of the benefit.

2. What control would the employer have regarding the voluntary work to be undertaken?

Many larger employers already have chosen ‘charities’ that they support. It can help boost their public image and might even help attract new work. Would the law allow employers with chosen charities to mandate that employees only work for their chosen corporate charities during their ‘voluntary leave’ periods. This would obviously carry a ‘Corporate Social Responsibility’ benefit for the employers in question and would ensure that the employer could benefit reputationally from a legal requirement. However, this could bring its own issues – would there be enough voluntary work within the chosen charity to accommodate the voluntary leave requirements of the full workforce? If some employees were allowed to choose the direction of their voluntary leave could this lead to complaints from others who had been forced to spend their leave working for the employer’s appointed charity.

If employees were given a free reign as to where to undertake their voluntary leave then the employees could choose to carry-out work within organisations which conflict with the employer itself. For example, an employee at a pharmaceutical company could choose to spend their time off campaigning against animal testing. There are also certain voluntary associations that employers may not want to be, even indirectly, associated with. For example, overtly political charities or organisations. This could lead to a situation where an employer ends up paying an employee to undertake voluntary work in an organisation with which it is in direct conflict!

3. How would you calculate the value of ‘paid leave’ in these circumstances?

The landmark recent decisions regarding the calculation of holiday pay have placed the spotlight on the concept of ‘normal pay’ during holidays with the latest position indicating that both overtime and commission should be included in the calculation of ‘normal pay’ during periods of holiday. Would the same be true during periods of ‘voluntary leave’ should this pledge become law? Arguably not as the issues relating to holiday pay have been driven by the fact that the right to time off on annual leave is a right emanating from Europe under the Working Time Directive. However, this could lead to its own administrative problems from a payroll perspective as employers would be juggling different systems for pay during annual leave and during voluntary leave.

4. What would happen if an employee was harassed or injured whilst undertaking voluntary work?

The answer to this will probably depend on the control that the employer has exercised over the form of the voluntary work. If it is truly voluntary and nothing to do with the employer at all then it’s unlikely that there will be any need for the employer’s insurance to cover the volunteering duties. However, the situation might be very different if the employer controls and allocates the voluntary work as part of an internal programme with chosen charities – in those circumstances premiums might need to be increased!

Would the employer be liable if the employee was harassed whilst volunteering? The 3rd party harassment provisions in the Equality Act 2010 have now been repealed which means that, in practice, it would be difficult for an employer to be found liable for the harassing actions of a 3rd party unless that employer exercised a high degree of control over that 3rd party. In the classic case in this area a school was found not to have the necessary degree of control over its pupils to be guilty of harassment when a teacher was harassed by her pupils. Against this backdrop the employer is unlikely to have sufficient control over any 3rd party charitable organisation and its members/staff.

However, these questions and others all cast doubt on whether this pledge will ever become law and if it does whether it could conflict with that other pledge to ease the burden on business.

This post was edited by Francesca Read. For more information, email blogs@gateleyuk.com.

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This blog is intended only as a synopsis of certain recent developments. If any matter referred to in this blog is sought to be relied upon, further advice should be obtained.