An important, but sometimes weak area of an organisation’s overall resilience is its management of human resources. This can be the case with small to medium sized charities especially (though by no means exclusively) which do not have large teams or capacity to manage the often onerous requirements that can accompany staffing issues. For instance, ensuring that all necessary legal compliance policies are in place and kept up to date, that terms of reference are written and reviewed routinely, or that adequate and appropriate contracts are in place.
As a consequence, staffing issues can become a significant area of vulnerability which can undermine the overall effectiveness and adaptiveness of your charity. Ultimately, they may lead to time consuming, expensive and often distressing legal disputes for you. This article briefly explores one important aspect of staffing vulnerability, namely not having any or the correct contracts and agreements in place. The terms ‘staffing’ is used here to refer to employees, self-employed contractors and volunteers reflecting the composition of many charitable teams.
An issue common to all categories of staffing, which is especially pronounced in the charitable sector, is that the nature of the work often involves friends and volunteers. Additionally, since many charities are often partly or fully operated by unpaid volunteers with busy other lives, key legalities and good practice may not be afforded the time and attention they need, not least from both legal compliance and resilience perspectives. There can be an awkwardness too in asking friends to sign more formal legal agreements, in case it gives the impression that they are not trusted.
As a consequence, staffing arrangements are not always put onto the clear, sound footings that they should be. Instead of putting contracts and agreements in place, there may only be informal discussions or arrangements made, which may or may not be confirmed in writing such as by email. Whilst such an approach might seem attractive, at least initially to navigate potential awkwardness, in the longer term they can be counterproductive and problematic, especially if the relationship goes wrong.
For example, some charities embed self-employed contractors within their teams to deliver specific services, such as finance or operational support. In and of itself, such arrangements can work very well, allowing both parties (the charity and the contractor) more flexibility as well as being less onerous legally and financially for a charity compared with an employee. However, there are very strict criteria which need to be both established and maintained throughout this working arrangement to ensure that the contractor does not unintentionally acquire employee status through practice (which may evolve gradually over time). A self-employed contractual arrangement alone will not suffice to resist any subsequent claim by a contractor that they are in fact employees with all of the accompanying rights and benefits (such as holiday and sick pay, pension rights, national insurance contributions) and employer obligations. That said, a clear contract stating the original intentions of the parties is important evidence in any subsequent dispute, including employment tribunal proceedings, to assist in defending any employee status claim which could be very costly for you.
Another often overlooked source of potential vulnerability relates to volunteers, upon whom the charitable sector relies heavily. Volunteers are often put into roles with significant responsibilities and powers (such as trustees or church leaders) and/or with access to personal data and confidential information, yet without any form of agreement by which they undertake, for instance, to comply with key legal compliance policies and to respect confidentiality. It is highly desirable to put some form of short agreement in place which states that they are volunteers and that there is no intention to create an employment relationship. Furthermore, such an agreement can be used to ensure that any intellectual property developed by the volunteer in the course of their volunteering (which legally belongs to the volunteer) is assigned or licensed to the charity to prevent any subsequent legal claim for any unauthorised or wrongful use of the volunteer’s intellectual property (such as copyright developed in the course of writing charitable reports or marketing tools).
With respect to the employees, especially any new ones taken on whilst we are still navigating the consequences of Covid-19 and likely recession, it is important to ensure that all relevant terms are written into their contracts of employment. For instance, clear termination, variation, lay-off and short-term working clauses to allow you maximum flexibility as an employer to navigate current and future financial challenges in relation to staffing costs. It is important also to ensure that all employer contractual obligations are met. For instance, if they state that you will undertake a health and safety risk assessment for a home-based worker on an annual basis, then this should be done to prevent problems later especially if an incident does occur.
If any of the gaps and vulnerabilities discussed here apply to your current staffing arrangements, then there is no better time than the present to overcome any sense of awkwardness or embarrassment to put appropriate contracts and agreements in place, including pre-emptively before any disputes may occur. With careful thinking and management, these can be introduced in a sensitive and positive way including as part of reviewing and improving your current management of human resources. Interestingly, most people appreciate having more formal and professional arrangements in place which clearly delineate boundaries, including your expectations of and responsibilities towards them. Similarly, if you do not already have them in place, it is advisable to ensure that you have clear, up-to-date terms of reference which could be issued at the same time as new or updated contracts.
Katja Samuel is the founder and CEO of GSDM(R4C), with broad ranging resilience experience and expertise.