Tracey Guest: Government proposals could lead to charities facing employment tribunal claims from volunteers

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Tracey Guest: Government proposals could lead to charites facing employment tribunal claims from volunteers

A government consultation is currently underway which could give rise to changes in how the voluntary sector operates, if increased legal protection for volunteers is implemented.

The Government is currently considering proposals designed to extend the protection of workplace harassment. As part of the consultation, the proposals would also extend equality legislation so that it covers volunteers as well as paid staff.

Put simply, the proposals, if implemented, would allow volunteers and interns to bring claims of discrimination and harassment against organisations for the first time.

To give this some scale, the National Council for Voluntary Organisations (NCVO), which champions and supports voluntary organisations reported in the 2019 UK Civil Society Almanac that 20.1 million people in the UK volunteered through a group, club or organisation between 2017 and 2018.

More than one-in-five people (22 per cent) formally volunteered at least once a month during that time. That’s nearly 12 million people undertaking regular voluntary work.

The consultation entitled ‘Sexual Harassment in the Workplace’ is due to be concluded in October 2019. The paper says: “It is particularly important to get protection right for these groups, as the power dynamics often involved in sexual harassment mean that they can be particularly vulnerable in the workplace.”

The purpose of the ongoing consultation is to explore in more detail the following points:

  • What more could be done to ensure that employers do take all steps they can to prevent harassment from happening.
  • Whether employers need to be made explicitly responsible for protecting their staff from harassment by third parties, like customers and clients.
  • Whether in practice there are any interns who are not currently covered by the equality protections in the workplace.
  • What the right balance is between the flexibility of volunteering and equality protections for volunteers.
  • Whether people are being denied access to justice because of the three-month time limits for bringing an equality claim to an employment tribunal.

 

How exactly any increased protection for volunteers and interns would be implemented in practice remains to be seen. However, the main way of addressing harassment cases for those currently protected is through the employment tribunal or the county courts.

Shifting Position

Clearly, there is common ground that everybody should be entitled to go about their daily activities without being harassed in any sense, whether that be sexually or by any other protected characteristic.

However, the impact of bringing such protections under law, and specifically in the Equality Act 2010, is going to have an implication for charities and other organisations who operate in the voluntary sector.

The NCVO has already raised concerns that the very nature of volunteering will be forever changed to become more aligned with that of employment.

Enforcement of harassment or discrimination in the paid workforce normally comes under the employment tribunal and with that process comes a raft of employment based processes, aimed at avoiding or contesting contentious tribunal cases. These do not extend to volunteers.

This will be new territory to be explored for many of those organisations who utilise the services of volunteers and one which will undoubtedly throw up many challenges.

Current position

I would recommend that all such organisations need to familiarise themselves with some basic employment law.

The Equality Act 2010 (section 26), makes it clear that sexual harassment in the workplace is against the law and there are three main types of harassment.

The first type is harassment related to age, disability, gender reassignment, race, religion or belief, sex, or sexual orientation which involves unwanted conduct that has the purpose or effect of violating the victim’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim.

The second type is sexual harassment, which is defined as unwanted conduct of a sexual nature that has the purpose or effect of violating an individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim.

The third type prohibits treating someone less favourably than another because they have either submitted, or failed to submit, to sexual harassment or harassment related to sex or gender reassignment.

Currently workplace protections pursuant to the Equality Act (s.83(2)) apply to individuals who have an employment contract, an apprenticeship contract, or a contract to personally do work. This is a broader definition than that of an “employee” or “worker” for employment law purposes.

Protections also apply to a variety of wider work relationships beyond employment, such as contract workers, police officers, partners, barristers and advocates, public office-holders and those seeking or undertaking vocational training.

The prerequisite for these rights is that there is a contract between the individual and the organisation.

However, despite the fact that there is such a clear legal position on this issue there is significant evidence to suggest that workplace sexual harassment remains widespread. This suggests that employers are not taking adequate steps to prevent harassment from happening. This may be because employers are unaware of their legal responsibility or they simply don’t know how to prevent harassment effectively.

If such legal protections are afforded to the paid workforce in the UK and the problem is still escalating, then it is clear as to the scale of the challenge to those organisations which won’t have such specialised HR functions.

The Charity Case

The question of whether volunteers and interns should be explicitly covered by discrimination law has been the subject of debate over the years. Not only did the European Council reject a proposal to specifically cover them in the Council directive establishing the Equal Treatment Framework Directive, but the UK rejected a similar proposed amendment to the Equality Bill during its passage through parliament.

Despite not falling under the Equality Act, there are still some existing protections for volunteers.

Legal protection may exist under the common law duty of care and elements of health and safety law, in addition to which significant safeguarding measures have been put in place in the charity sector.

Many of the larger charities which rely on the support of volunteers would already fall within the scope of the Equality Act for their paid staff, and extending the protection to their volunteers would seem proportionate, assuming they took professional advice.

The real challenge will be for volunteer led organisations which might not have the resources or expertise to meet legislative requirements.

In an impact assessment published alongside the consultation, the government forecasts that the proposals could result in between 22 and 38 additional harassment cases being brought by charity volunteers every year, at a public cost of about £700,000.

Whilst the proposals under consultation acknowledge the potential impact on many smaller organisations the paper claims to want to avoid any approach that might have a “chilling effect” on the voluntary sector to the point where organisations may close or volunteering opportunities are reduced.

The costs of being prepared could prove to be a shrewd investment.

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About Tracey Guest

Tracey joined Slater Heelis in November 2009 as Partner and Head of the Employment department. She qualified as a solicitor in 1999 and has specialised in employment law throughout her career. She deals regularly with complex employment law queries about Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), large scale redundancy exercises, restrictive covenants/injunctive proceedings and executive terminations. Tracey also deals with tribunal work, handling unfair dismissal and discrimination claims. She also regularly provides advice in relation to disciplinary and grievance procedures.

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