Law Volunteer Management. Rape Crisis Midwest

Transcription

1 Law Volunteer Management Verena Tarpey Rape Crisis Midwest

2 Introduction! Part One Employees v Volunteers who comes with the scope! Part Two Equality Legislation and how it applies to Volunteers! Part Three Civil Liability of Volunteers - Good Samaritan, Volunteer Rescuers and General Volunteers! Part Four Legislation what legislation should you be concerned about! Part Five Summary! Questions and Answers

3 Part One - Volunteers v Employees Legal Differences between them and who is actually an employee or volunteer?

4 Employees v Volunteers! Come within scope of Terms of contract! Employment Contract need not be in writing! There are 4 basic elements:! Offer, Acceptance, Consideration and Intention to Create Legal Relations

5 Employee v Volunteer! Employee! A person who is hired to provide services to a company on a regular basis in exchange for compensation ( and who does not provide these services as part of an independent business.)! Volunteer! A simple definition of a volunteer is a person works free-of-charge on a goodwill basis. They are under no obligation to work and they are under no obligation to be paid for their work. Examples! - general volunteers, boards of management,

6 Employment Contract Elements! Offer a clear and unambiguous statement of the terms in which the employer is willing to contract should the person ( employee) to whom the offer is address decide to accept! Acceptance a final and unequivocal expression of agreement to the terms of an offer! Consideration - quid pro quo! Intention to Create Legal Relations -

7 Employee v Volunteer Employee! Offer Recruitment and Selection! Acceptance signing offer of employment! Consideration - salary Volunteer! Offer - Similar Process recruitment /selection! - examples! Acceptance! - examples! Consideration missing element

8 Points to note from this.! Not paying flat rate expenses! Written agreements! Importance of having volunteer agreements in place

9 Volunteer Agreements and Pitfalls! Volunteer Agreements vital covering main issues! Short term/long term! Confidentiality! Intellectual Property! Out of pocket expenses! Downside to this hours of effort to one person v the other ( Audrey example)! Rape Crisis One day training programmes, SATU, Education, Counselling

10 Who comes within the scope of volunteer?! Intern or Internship not defined in Irish Law! Advice short, defined and no stipend! Youth Development Internship?! Compare to a TUS worker? paid a PRSI class A stamp! VW 1 form watch these forms. FOI

11 Part Two Equality Legislation How it applies to Volunteers

12 Equality Legislation Overview! Employment Equality Act, S. 1 Definition of an Employee A person who has entered into or works under a contract of employment Equal Status Act 2000 and Equality Act Who does the Act apply to? S. 5 People who are: - using or providing a service Using or Providing a Service? Effect of the Act is two fold - Staff, must in delivering a service have regard to provisions of the act - Volunteers, must, in delivering a service have regard to the provisions of the act.

13 Case Law! Do Volunteers come within scope of Employment Equality Act ( as distinct from Equal Status Act)! No precedent to suggest! No Irish or ECJ Judgments! X v- Mid Sussex Citizens Advice Bureau summary of case..

14 Principles from the Case as they apply to Volunteers! Commitment to Equal Treatment and non discrimination is a fundamental aspect of European Law enshrined in Treaty! Volunteering is desirable and should be encouraged! Framework Directive European Parliament proposal to include unpaid and voluntary workers to come within scope of Directive rejected by Council of Ministers. Two Fold! - spirit of definition of employees was never intended to cover volunteers! European Institutions never intended protection of volunteers otherwise they would have been included.

15 Are they Governed by Equal Status Act?! Opinion of the Human Rights and Equality Provision in UK! It is possible when you are providing a volunteering opportunity to someone, this counts as providing them ( ie the volunteer) a service! Opinion of the Equality Authority in Ireland - Volunteer is entitled to take action

16 Group Work! Case Examples

17 Part Three - Civil Liability Good Samaritan Love thy neighbour as they would love themselves

18 Good Samaritan and Volunteering! Biblical Parable Love thy neighbour as they would love themselves in order to love thy neighbour as yourself, you must show compassion to all others! Morally compelled as a bystander.are you legally?! Good Samaritan No general duty to intervene in Irish Law - affirmative action (Diana, Princess of Wales, Co Co example of pavement! If a person decides to intervene they must do so with all due care and if they cause injury arising from carelessness, civil liability would be imposed ie you would be negligent

19 Civil Law ( Miscellaneous Provisions) Act 2011! Places the position of liability of good Samaritans, Volunteers and voluntary organisations on a statutory footing! Reduces the risk of exposure of the volunteer to legal liability while carrying out voluntary work

20 Good Samaritan! A person, who without expectation of payment or other reward, provides assistance, advice or care to another person in an emergency but does NOT include a person who does so as a volunteer

21 Volunteer (including Volunteer Rescuer)! Is a person authorised by a volunteer organisation and does so without expectation of payment (other than reasonable reimbursement of expenses) or other reward

22 ! S51 (E) PERSONAL LIABILITY! A volunteer shall not be personally liable in negligence for any act done when carrying out voluntary work! An organisation is also prohibited from seeking an indemnity from volunteer ( what would this suggest?)! Exceptions?! the act was done in bad faith! The volunteer knew or reasonably ought to have it was outside scope of voluntary work authorised! Contrary to instructions of organisation

23 Principles of Negligence for Volunteers! You are negligent if you fail to take reasonable care to avoid an act likely to cause harm to another person, that harm being reasonably foreseeable! Main elements must establish a duty of care ( world at large), failure to conform with standards of care, loss, causation! Duty of Care what duty of care does a volunteer require: 1. Proximity special relationship reliance - cooker 2. Foreseeability rescuers, licensing,, planning 3. Is it reasonable to impose a duty on them in the circumstances

24 General Volunteers! Difference between a volunteer rescuer and a general volunteer? 1. Not necessarily of an inherently dangerous nature 2. More likely to be responsible for creating the risk

25 Part Four - Legislation and Volunteers Had it occurred to you that certain legislation may appy?

26 Legislation what applies?! Do Employment Law Principles apply to Volunteers?! NO! Payment of Wages Act, 1991 wage slips etc! National Minimum Wage Act, 2000 minimum wage! POSSIBLY - Good Practice/Potential Test Cases!! Maternity Protection Act, approaches to this issue 1. Approach No. 1 Take leave as determined by statute 2. Approach No. 2 Take as long as you wish? 3. Approach No. 3 sorry, please try again Protection of Young Persons (Employment) Act, 1996 persons under 14 cannot carry out collections under the Street and House to house Collections Act, S. 3 no child can engage in work under 14 years years can do light work outside school term only and years can work during school term but shall not exceed 8 hours per week. Organisation of Working Time Act, 1997 do we permit volunteers to exceed maximum working week for example? 50 hours..

27 Legislation! YES! Safety, Health and Welfare at Work, So fundamental - negligence action - S. 12 Every Employer shall manage and conduct his or her undertaking in such a way as to ensure that, so far as reasonably practicable, that in the course of the work being carried out, individuals at the place of work ( not being employees that is) are not exposed to any risk to their safety, health or welfare! Planning and Development, Licensing

28 Group Work! Case Studies

29 Summary of Main Points

30 Main Points! Employee v- Volunteer! Equality Legislation! Civil Liability! Legislation