The issue:

The UK’s 19 million volunteers perform many activities that benefit charities, groups and the environment but are unpaid. Volunteers only have limited legal rights such as:

• Protection of their personal data under data protection legislation and
• Health and safety: there is a duty on employers to ensure all those affected by their activities are safe from health and safety risks

The lack of whistleblowing protection for volunteers under employment law stems largely from the fact that dismissal or resignation does not result in losing a paid position. Compensation for loss of earnings is the main way workers obtain justice through Employment Tribunals. However, volunteers can still suffer significant losses if mistreated for whistleblowing. For example, they may lose out on future volunteer experience or a positive reference which could impact on future employment prospects.

Trainees

It is a confusing picture for trainees. Trainees, such as trainee doctors or lawyers, will likely have a contract of employment so will have employment rights, including whistleblowing rights. The high profile case of junior doctor Chris Day demonstrates, however, the difficulty for junior or trainee staff to show that they do have whistleblowing protection.

But employers can also have more informal arrangements of traineeship which are not paid and their employment status will be much less clear. At most, they may be entitled to minimum wage protections if they are a ‘worker’ but otherwise their employment rights are limited.

Interns and university affiliated work placements

The majority of internships and university affiliated work placements (i.e. work placements that accompany a university degree) come with no employment law protection and that includes protection for whistleblowing. The UK whistleblowing law currently provides protection to a limited group of individuals undergoing such training or unpaid work such as student nurses and midwives, and individuals who are not employees but provided with work placement as part of a training course and/or training for work (e.g. apprentice).

However, this protection is not in place where the course is run by an ‘educational establishment’, such as a university, college, or school.
The line between intern and worker can be grey, as the case study below demonstrates. Losing a work experience placement or internship can have a significant impact on an individual’s future career, yet they cannot bring a claim if they are treated badly after whistleblowing.

Employment law rights?

Extending employment protections wholesale to volunteers is problematic – it doesn’t make sense to give them access to national minimum wage protections, as by definition they are unpaid.  However, whistleblowing protection already applies to a wider group than most workplace rights.

Some legal commentators  suggest that the arguments in the Gilham case can be applied to protect other groups, such as volunteers and interns, on human rights grounds. Momentum is gathering for volunteers to have whistleblowing protection. Though volunteers lack a traditional contract of employment, they are a vital part of the voluntary sector workforce and a key part of an effective workplace whistleblowing system. They need the protection of law as whistleblowers.

The new EU Directive on whistleblowing extends protection to volunteers. Regulators, such as the Charity Commission, treat volunteers as whistleblowers recognising the valuable contribution they can make to protecting the public interest.

Research:

In 2016, The Low Pay Commission (LPC) highlighted a growth in the use of  ‘internship’, ‘work experience’ or ‘volunteer’ to describe “unpaid activities that looked like work”. Employers should not avoid their obligations under employment law and the LPC stated a minimum wage should be enforced equally for all workers.

Case study: Dr Chris Day

Chris Day was a junior doctor working in an NHS Intensive Care Unit. He raised concerns about understaffing which led to medical staff caring for more patients than the guidelines permitted. As a junior doctor, he had an employment relationship with the NHS Trust but it was not clear whether he had whistleblowing rights against Health Education England (HEE), the body responsible for education, training and workforce planning for all NHS staff in England.

The Court of Appeal rejected a literal reading of section 43K(1) in PIDA and found that a ‘worker’ relationship can exist with any employer who substantially determines the terms of engagement of the worker. It was possible that both the NHS Trust and HEE had substantially determined the terms, which means that a worker can have two employers for the purposes of whistleblowing law and bring a claim against either of them.

Dr Day’s case raises a complex issue of law. It required lengthy and costly litigation to decide what the law really meant and whether it was Parliament’s intention to protect junior doctors. Whistleblowing law should not put the burden on claimants to bring a test case.

Protect’s bill will make clear that trainees in workplaces do have a clear right not to be victimised for raising concerns.

Whistleblowing affects us all. Protect’s campaign Let’s Fix UK Whistleblowing Law needs your support. Click the banner below to write to your local MP.