Senior Policy and Information Officer Tracy Saunders asks how much do you know when it comes to volunteers and the law? Please take a few minutes to answer the five questions below and then check your answers

1) What is the ESA?

a) The European Space Agency

b) The Entertainment Software Association

c) Employment and Support Allowance

2) What is the ISA?

a) International Studies Association

b) The Independent Safeguarding Authority

c) International Sign Association

3) What does the Corporate Manslaughter and Corporate Homicide Act do?

a) Impose new health and safety duties on organisations

b) Make senior management personally responsible for any accidents or incidents that occur

c) Neither of the above

4) What is a Charity Worker?

a) Someone who works in a charity

b) A volunteer

c) A type of worker

5) Does the Disability Discrimination Act apply to volunteers?

a) Yes

b) No

c) Maybe

Answers:

1.C

Employment Support Allowance is a new benefit which was introduced in October 2008. The ESA replaces both Incapacity Benefit and Income Support paid because of disability or incapacity. (Incapacity Benefit and Income Support will continue to be paid to existing claimants; new claimants receive ESA).

The new regulations on Employment Support Allowance clearly state that claimants will be allowed to volunteer. The regulations also recognise that reasonable expenses can be reimbursed to claimants who volunteer.

Further information

Volunteering while receiving benefits, September 2008. DWP/ Jobcentre Plus

2.B

The Independent Safeguarding Authority launched the Vetting and Barring Scheme on 12^th October 2009. This marks the beginning of a five-year phasing-in strategy. At the end of this time, all those working or volunteering with children or vulnerable adults in either ‘regulated activity' or ‘controlled activity' will need to be registered with the ISA.

From 12^th October:

• Two new barred lists have replaced POCA, POVA, and List 99.Checks of the two new Barred Lists can be made via an Enhanced CRB Disclosure.
• Those entering either paid or volunteering roles that are classed as ‘regulated activity' are now eligible for an Enhanced CRB Disclosure.
• Organisations have an increased duty to disclose any information received about a volunteer to the scheme, even if the volunteer has left the organisation.

New offences

• It is now a criminal offence for barred individuals to apply to work or volunteer with children or vulnerable adults in a wide range of posts.
• It is now a criminal offence for employers (and volunteer-involving organisations) to knowingly permit barred individuals to engage in 'regulated activity'.

Further information

The Vetting and Barring Scheme Guidance, Oct 2009.ISA, CRB and Access Northern Ireland.

Referral Guidance on ISA website.Sector-specific guidance to follow.

http://www.isa.homeoffice.gov.uk/

3.C

The Corporate Manslaughter and Corporate Homicide Act 2007 introduced a new offence for prosecuting companies and other organisations where there has been a gross failing, throughout the organisation, in the management of health and safety with fatal consequences.The new offence came into effect on 6 April 2008.

An organisation will be guilty of the new offence if the way in which its activities are managed or organised causes a death and amounts to a gross breach of a duty of care to the deceased.

For the new offence to apply, a substantial part of the failure within the organisation must have been at a senior level.The organisation's conduct must have fallen far below what could have been reasonably expected.

Penalties

• Organisations found guilty of the offence will be liable to an unlimited fine.
• Courts can impose a publicity order, requiring the organisation to publicise details of its conviction and fine.
• Courts can require an organisation to take steps to address the failures behind the death.

The offence is aimed at cases where management failures lie across an organisation and it is the organisation itself that will face prosecution.This means that directors, senior managers or other individuals cannot be prosecuted for the new offence, although individuals can already be prosecuted for gross negligence, manslaughter/culpable homicide and for health and safety offences.

The new Act did not introduce any new duties for organisations to comply with.

Further information

Understanding the Corporate Manslaughter and Corporate Homicide Act 2007, Ministry of Justice.

http://www.justice.gov.uk/guidance/docs/manslaughterhomicideact07.pdf

Leading health and safety at work: Leadership actions for Directors and Board Members, Institute of Directors and Health and Safety Executive.

http://www.hse.gov.uk/pubns/indg417.pdf

4.C

Under the UK Border Agency's new points-based system which allows people to work in the United Kingdom, a Charity Worker is a Tier 5 Temporary Worker.

The ‘charity worker' category is for people coming to the United Kingdom to do voluntary work for charity, which is not paid work. The work must be directly related to the work of the sponsor's organisation.

People wishing to apply as a charity worker must have:

A sponsor (the organisation that will host them) and

A valid certificate of sponsorship.

People can apply under the ‘charity worker' category if they are:

Applying for permission to enter the United Kingdom (known as 'entry clearance') under the ‘charity worker' category

Already in the United Kingdom as a ‘charity worker' and want to extend their permission to stay if they have been here for less than 12 months, which is the maximum time they are allowed to stay for.

The immigration category ‘voluntary workers' closed on 26 November 2008.

Further information

UK Border Agency website:

http://www.ukba.homeoffice.gov.uk/workingintheuk/tier5/charityworkers/

5.B

Charity Finance article [1]:

Volunteers not protected by discrimination law, tribunal rules

Volunteers are not protected by the Disability Discrimination Act as they are not covered by the term "occupation", the Employment Appeal Tribunal has ruled.

In a case that will have implications for all charities that deploy volunteers, the Tribunal last week handed down a decision regarding the employment status of volunteers in the case of X v Mid Sussex Citizens Advice Bureau, concerning a volunteer who brought a claim for disability discrimination against the CAB.

The case has been running since 2007 and was heard in the Court of Appeal and the Employment Appeal Tribunal in 2009.

The volunteer's claim for discrimination was rejected by the Tribunal at first instance on the basis that volunteers are not protected by the existing disability discrimination legislation.

The volunteer appealed this decision alleging that she can be protected because her volunteering falls within the definition of "occupation" under European equal-treatment legislation. She argued that the Disability Discrimination Act should be interpreted to include occupation and to thereby provide protection for volunteers. It was further suggested that such an interpretive approach should be extended to the other strands of discrimination.

But the Employment Appeal Tribunal found in favour of the CAB in respect of both arguments, holding that volunteers are not covered by the term "occupation" in the European equal-treatment legislation.

Victoria Cook, a solicitor at Bates Wells Braithwaite which represented the CAB in the case, said the judgment was in line with previous decisions that maintained that laws designed to protect employees did not apply equally to volunteers. She said the decision "recognises the unique relationship between charities and volunteers whereby volunteers give their often considerable time and effort to charitable organisations for free".

VE to address rights of volunteers

Elsewhere, Volunteering England will lead an inquiry into the rights and responsibilities of volunteers. The full scope and details of the enquiry will be set out on the 18 November.

[1] Article from Charity Finance by Tania Mason - 4 November 2009

http://www.charityfinance.co.uk/home/content.php?id=3277&pg=15&cat=58

Source: Volunteering England