Is this a volunteer role or a job?

England and Wales: This page sets out the position in full. Scotland: the same position, with no difference in principle — employment law is reserved, so the same statutes apply. Northern Ireland: the same status test in separate legislation, word for word — but the Equality Act 2010 does not apply there at all, so the discrimination consequences run under different law, heard in different tribunals — see below.

What is at stake: a genuine volunteer has almost no employment claim

Whether someone is a volunteer or employee decides whether employment law applies at all. The trustees or manager should settle it before a role is advertised. It is the first question in this hub: the pages on role descriptions, agreements and expenses that follow all assume it has been answered. The statutes are the same in England and Wales and in Scotland. Northern Ireland applies the same test under its own legislation. HMRC’s manual draws the line on payments.

In X v Mid Sussex Citizens Advice Bureau, a volunteer legal adviser was asked to stop volunteering. She claimed disability discrimination. The Supreme Court held that she had no claim at all.

There was no contract, so she was outside the definition of “employment” in discrimination law. Her fallback argument, that European law protected unpaid voluntary work as an “occupation”, was rejected too.

That cuts both ways, and both halves matter. A genuine volunteer is outside most of employment law. And a person you call a volunteer, but who in fact works under a contract, is inside all of it. That means the minimum wage, holiday pay, pensions, and the discrimination protection the adviser in that case did not have.

One carve-out in the judgment is worth knowing. The Court expressly left aside guidance, training and work experience. It did not hold that everything touching a volunteer is unregulated.

The volunteer or employee test: two questions

The test is whether either side could enforce anything against the other. It comes from South East Sheffield CAB v Grayson, an Employment Appeal Tribunal decision. Ask two questions:

1. If the person stopped turning up without notice, would the charity have any legal remedy against them?
2. If the charity had no work for them, would they have any legal remedy against the charity?

If both answers are no, there is no contract. If either answer is yes, you are probably describing a job, whatever the paperwork says.

The Tribunal put it like this: there must be “an arrangement under which, in exchange of valuable consideration, the volunteer is contractually obliged to render services”. In that case the advisers had a rota and a “usual minimum commitment”. That was not enough.

The Tribunal said “usual minimum commitment” and “reasonable expectations” were “not the language of contractual obligation”. Genuine expenses were “entirely unsurprising” and were not payment. Training and experience were not payment either.

Grayson is often misdescribed. The claimant was a paid employee. The question was whether the bureau’s volunteer advisers counted towards its headcount. The contract reasoning is what survives, and it is the leading analysis.

Both judgments are recorded here from the official texts. They were not re-read at source in this guide’s August verification pass. The statutory definitions they apply were.

Why the label settles nothing

The worker and employee definitions are written around a contract. Each regime has its own gate:

• Employee — Employment Rights Act 1996 s.230(1): someone who “works under … a contract of employment”.
• Worker — s.230(3)(b): someone working under “any other contract” to “perform personally any work or services”. The National Minimum Wage Act 1998 s.54 uses materially the same wording.
• Discrimination at work — Equality Act 2010 s.83(2)(a): “employment under a contract of employment, a contract of apprenticeship or a contract personally to do work”. This applies in England, Wales and Scotland only.

So for employment rights generally, and for the Equality Act, status is contract-gated. Whistleblowing is the one narrow statutory exception; what that means for a charity’s policy is on adopt a whistleblowing policy.

Section 230(6) makes the whole definition subject to s.43K, which gives “worker” an extended meaning for protected disclosures. It reaches, among others, a person given work experience on a training course or programme, with no contract of employment. For whistleblowing purposes there is a route into worker status that does not need a contract.

And courts look at the reality, not the label. Under Autoclenz v Belcher, they examine the parties’ real obligations. Calling someone a volunteer is evidence of what you intended. It is not a defence.

What turns a volunteer role into a job

These are the factors the cases and HMRC treat as pushing towards worker or employee status. They are risk factors, not rules — none on its own decides the question.

A rota on its own is not the problem. In Grayson, a rota with a usual minimum commitment created no obligation. The reason: nothing happened to someone who missed a shift except coming off the rota. It is the sanction that does the damage, not the schedule.

On payment, HMRC’s own manual gives the principle. Payments that “do more than reimburse the costs incurred, or are at scale rates … that cannot reasonably be regarded as merely a reimbursement of what they spend” may be pay.

The sector often cites Migrant Advisory Service v Chaudri for this. In that case a tribunal treated a flat weekly “expenses” payment, paid through holidays and sickness, as wages.

That case is known to this guide only from a law journal. The primary judgment was not read, so it is an illustration here, not authority. The HMRC principle stands without it.

On promised paid work, GOV.UK is explicit, verbatim: “You might be classed as an employee or worker rather than a volunteer if you get any other payment, reward or benefit in kind. This includes any promise of a contract or paid work in the future.”

Northern Ireland: the same test, different law around it

Northern Ireland applies the same status test under its own legislation, but its discrimination law and tribunals are different. Scotland needs no separate treatment: employment law is reserved, so the same Acts apply directly.

The Northern Ireland difference is structural, and easy to miss. Employment law there is a transferred matter under the Northern Ireland Act 1998. Northern Ireland has its own parallel statutes rather than the Great Britain Acts.

• The status test is the same. Article 3 of the Employment Rights (Northern Ireland) Order 1996 sets out the employee, worker and employer definitions. Its wording matches s.230 word for word. The contract-gate works the same way.
• The discrimination law is not. The Equality Act 2010 does not apply in Northern Ireland. Its extent clause, s.217, extends only three unrelated provisions there. Northern Ireland runs its own set of instruments instead. They include the Fair Employment and Treatment (Northern Ireland) Order 1998, on religious belief and political opinion. That Order has no Great Britain equivalent.
• The tribunals are different. Claims go to the Industrial Tribunals, or to the Fair Employment Tribunal for religious belief and political opinion — not to the Employment Tribunal.
• The case law is persuasive, not binding. Grayson, X v Mid Sussex and Autoclenz are England and Wales authority. A Northern Ireland tribunal will look at them, and it is now clear the statutory wording they apply is identical. But they do not bind it.

The list of Northern Ireland discrimination instruments rests on two practitioner sources rather than on each instrument’s own text. Treat it as reliable, not exhaustive.

Write the decision down before you advertise

The deliverable is a short written decision, made before the role goes out. Record three things:

1. The answers to the two *Grayson* questions, and why.
2. Each risk factor from the table, and whether the role has it.
3. What the charity will do instead where a factor is present — for example, replacing a flat payment with receipted expenses.

If the charity wants an enforceable commitment — someone who must turn up, and who gets paid — that is a job. Say so, and cost the post properly as one. Whether the paid person is then an employee, a worker or self-employed is a separate test, set out on deciding employment status. The expenses side is covered on the volunteer expenses page.

If it is a volunteer role, the next two steps turn the decision into documents: the role description and the volunteer agreement. Whether to have a volunteer policy at all is a separate question, answered on the governance page on volunteer policies — nothing requires one.

Common mistake: relying on the label

Calling someone a volunteer feels like a status in its own right. It is not. All three statutory regimes are contract-gated, apart from the narrow whistleblowing exception, and courts look at the parties’ real obligations rather than the words on the document. If the arrangement is enforceable both ways, a contract exists whatever it is called.

Common mistake: attaching a real sanction to the rota

Managers want reliability and reach for the tools they would use with staff. A rota alone did not create an obligation in Grayson, because nothing beyond removal from the rota followed a missed shift. A genuine, enforceable sanction for not attending is one of the high-risk factors.

Common mistake: promising a paid job later in return for volunteering now

It feels like a fair reward for commitment. GOV.UK names “any promise of a contract or paid work in the future”. Such a promise can make the person an employee or worker rather than a volunteer.

Worked example

Wrenfield Village Hall wants someone to open and lock the hall for bookings. The committee is minded to pay a fixed weekly “thank-you”.

Apply the two questions. If the key-holder stopped turning up without notice, would the hall have any legal remedy against them? If there were no bookings for a month, would they have one against the hall? With a fixed weekly payment in the picture, the second answer starts to look like yes.

Then check the table. A fixed weekly sum unrelated to any actual cost is a high-risk factor on its own.

What is at stake runs in both directions. Handled as a genuine volunteer role, the key-holder is outside most employment law, as the adviser in X v Mid Sussex was. Handled carelessly, the hall may have an employee it has never paid the minimum wage.

The outcome: if both answers are no and the payment is replaced by evidenced expenses, record it as a volunteer role, with the reasons. If the committee wants an enforceable commitment, it is describing a job, and should cost it as one.