One of our charity trustees is pregnant – what duties do we have?

We consider the statutory rights attached to pregnancy and whether they apply to volunteers.

At first glance this seems an easy question to answer – volunteers don’t have statutory rights like employees and workers so why would this question arise? This may appear to be the case however in many charities and other types of organisations engaging with volunteers the lines are blurred between the status of volunteers and other workers. So the short answer to this question is – the duties you owe depend on the status of your volunteer.

Statutory rights relating to pregnancy

Pregnant employees have 4 main legal rights:

• paid time off for antenatal care

• maternity leave

• maternity pay or maternity allowance

• protection against unfair treatment, discrimination or dismissal

Pregnant workers do not have statutory maternity leave but they may have maternity pay rights and they are protected from discrimination on grounds of pregnancy and maternity under the Equality Act 2010 (the “EQA”) in the same way as employees. 

Self-employed individuals do not have maternity and statutory maternity pay rights in regard to the organisation using their services but they are protected against discrimination by the end-user of their services. 

Volunteers do not have maternity leave and statutory maternity pay rights; neither are they protected from discrimination under the employment provisions of the EQA. However, they may be able to claim, in specific circumstances, that by offering opportunities for volunteering or work experience an organisation is providing a service and consequently they are protected from discrimination under Part 3 of the EQA which deals with discrimination in the provision of goods, services and facilities. Therefore there may be circumstances where a pregnant volunteer who feels they have suffered unfavourable treatment on grounds of pregnancy/maternity may have a claim under the EQA.

Health and Safety 

Organisations owe common law and statutory duties to protect the health and safety of employees, workers, contractors and members of the public. The obligation on employers to "ensure, as far as reasonably practicable, that persons not in their employment, who may be affected by their undertaking, are not exposed to risks to their health and safety" as set out in the Health and Safety at Work etc Act 1974 means that health and safety must be considered for volunteers as well as for employees. 

The Health and Safety Executive (“HSE”) states in its advice to employers that organisations must include volunteers in their risk assessment to help manage any risks that specifically apply to them. This will include risks specific to pregnant volunteers. It goes on to say organisations must consult employees and volunteers in a two-way process to allow them to raise concerns and influence decisions on managing health and safety. 

In summary, genuine volunteers have relatively few rights relating to pregnancy and maternity leave other than the duty of an organisation to ensure their health and safety and in very restricted circumstances a claim as a “service user” for discrimination under EQA. 

However this is not the full picture; the question remains as to whether the pregnant volunteer in question is truly a volunteer or could they argue employee, worker or self-employed status; alternatively are they a voluntary worker and if so what difference would that make?

What is the status of your trustee/volunteer?

Most charities set out to ensure their volunteers at all levels would not be classed as anything but volunteers. Generally, the governing documents of charities do not allow the remuneration of trustees for carrying out their governance role and care is taken to ensure no contract exists between the organisation and the volunteer and only payments for bona fide expenses are made.

Despite best intentions, over time boundaries can become blurred and mistakes are made when engaging with supporters of the charity.

The Department for Business and Trade (DBT) describes a "volunteer" as someone who:

✔ Has an arrangement with an organisation, which does not entitle them to a financial reward or benefit in kind for work they perform under the arrangement.

✔ Does not have to turn up for work if they do not want to (even if they are expected to or they generally work to a regular pattern).

✔ Cannot be dismissed, sued for breach of contract or have payment or reward withheld if they fail to do the work or perform the services they were providing.

The key points being there is no intention to create a legal relationship between the organisation and the volunteer by way of a contract and no payment is made save for expenses reasonably incurred.

However, there is no legal definition of a volunteer; we explored this issue recently in an article here which considered the case of Mr Martin Groom v Maritime and Coastguard Agency. 

The Coastguard Agency treated Mr Groom as a volunteer however the Employment Appeal Tribunal found that he was a worker because all the required elements of a contract were in place. Although the volunteer handbook included contradictory statements, in practice there was clearly mutual obligation in the arrangement with an expectation that volunteers would have a reasonable attendance level at incidents, the right to payment of remuneration for attending incidents and activities and complying with the code of conduct. 

As we noted above workers do not have maternity leave but they may have statutory maternity pay rights and they are protected from discrimination on grounds of pregnancy and maternity under the Equality Act 2010 (the “EQA”) in the same way as employees. So if a volunteer was removed from their volunteer post because they were pregnant and they were able to show they were a worker like Mr Groom they would be eligible to bring a direct discrimination claim under EQA and potentially qualify for SMP. 

This highlights the importance of careful drafting of volunteer agreements and related policies to seek to reduce the risk of a contract coming into existence between the organisation and its volunteers. However, it is important also to review practical arrangements for working with and rewarding or compensating volunteers given the risk that a volunteer might later be found to be a worker or employee. 

Finally, volunteer workers are a separate category of worker who work for charities, voluntary organisations, associated fund-raising bodies and statutory bodies. They are workers in terms of their statutory rights but the difference being they normally receive expenses and subsistence but no salary and are exempt from NMW, providing they meet the test for being a volunteer worker. However, organisations should bear in mind they do have the same rights as workers in terms of protection under EQA and they are also protected under health and safety legislation.  

The FAQ specifically asked about the duties towards a trustee. In most cases a trustee would not have an operational role and would not be an employee or worker within the charity; therefore if the trustee is pregnant the duties of the organisation lie in ensuring the health and safety of that trustee. However, as we have seen the lines may be blurred when it comes to analysing the status of a volunteer trustee. In some cases, trustees may have an operational role within the charity or they may be engaged to provide services to the charity on account of their expertise. Some charities have recently moved to offer payments to trustees in order to open up the opportunity for trusteeship to those who could not otherwise afford to do so and to bring more diversity to their boards.

Depending on the contractual arrangements, together with an analysis of the practical day to day activities, it may be possible for the trustee to show they are a worker or an employee in which case they would have a broader range of statutory rights and protections than a volunteer. Organisations should be clear about how they engage with their volunteers and put in place documents that clearly reflect the arrangements “on the ground”.