If someone who volunteers in a charity shop is summarily dismissed, can this person bring an unfair dismissal case? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise.
The question:
A friend of mine is a volunteer manager in a charity shop, managing volunteer workers in the shop. She summarily dismissed one worker for alleged theft. The worker’s sister later returned to the shop with the goods saying that the worker had only taken them to wash them (not uncommon). She also said that the worker would be contacting a lawyer about bringing an unfair dismissal case. Does employment law apply? What are the liabilities of the manager and the charity? There are no formal contracts of any kind.
Legal advice:
Esther Smith, partner, Thomas Eggar
Someone who is a genuine volunteer (who provides their time and efforts without obligation or remuneration other than reasonably incurred expenses) will not be an employee.
Therefore if the person who was ‘summarily dismissed’ was a volunteer, they will not have protection under employment legislation to unfair dismissal, as the majority of statutes apply only to employees or workers, which does not include the genuine volunteer.
Therefore, the charity should not face any liability for the ‘dismissal’ of this volunteer, so long as she genuinely is one.
Your friend who conducted the ‘dismissal’ presumably has the authority from the charity to ‘hire and fire’ and the fact that she may not be an employee herself does not in itself affect this.
Therefore there should be no liability on her personally for any of this. The only time she may find herself personally liable would be in some form of discrimination claim, but from the information provided this does not appear to be the case here.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
* * *
Martin Brewer, partner and employment law specialist, Mills & Reeve
Employment law applies, in the unfair dismissal sense, if the worker was an employee. This means that there must be a contract between the worker and the charity (which can be implied) and that contract must be a contract of employment. It’s impossible to say what the situation here was as there isn’t enough information. However, the key questions are:
- Was the worker obliged to work in return for pay?
- Did the charity exercise control over the worker?
- Was there anything in the relationship which tends to suggest something other than employment?
You would need to look at things such as regularity of work, duties, pay, holidays, sick pay, tax and so on to come to a view. In unfair dismissal claims, it is the employer who is liable. No claim can be made against the manager for unfair dismissal.
Martin Brewer can be contacted at [email protected]. For further information, please visit Mills & Reeve.
* * *
2 Responses
Unfair dismissal and the minimum wage or libel / slander or both
As you have been advised, employment law will not apply unless a contract of employment can be implied. Key issues will be whether payment is made – watch out for non receipted expenses or payment in kind (goods), whether the “volunteer” is obliged to work – watch out for scheduled work days / absence notification requirements etc, and what control is exercised by the charity over how the work is done – rules / procedures etc can suggest the required element of control.
If an employment relationship can be implied the issue won’t just be one of unfair dismissal, any half decent lawyer will also go after the minimum wage for all the hours worked by the volunteer for the last 6 years.
If an employment relationship can’t be implied the issue may become one of slander (if nothing was put in writing) or libel (if anything about the alleged theft was put in writing) and as this type of allegation can have serious implications for future employment etc the potential damages can be high.
If a proper investigation was held your friend may have a reasonable defence for her actions but if the “summary dismissal” failed to give the volunteer a chance to put her case she could be at risk. I suggest that your friend checks whether the charity would be liable or whether she might have a personal liability for her actions if such a case is brought.
If the charity does not provide indemnity your friend might want to consider seeking legal advice to head off any potential claim against her.
However, it is just as likely that the volunteer won’t want to go to the considerable expense of taking legal action and your friend won’t hear anything more about it.
Never confuse law and justice
[Cough] Well, ask a lawyer a question and s/he will probably answer it as a lawyer. But, on the assumption that there might one day be a relationship between law and justice, would it not be sensible to broaden the answer and suggest that the manager might have been wrong to dismiss the volunteer without allowing an opportunity to explain, and that it would be wise to extend access for volunteers to grievance and disciplinary procedures as good employment relations practice?