Volunteer or employee ?

[L3gal]

Me and my partner were asked to help out at a Hotel In Devon after there had been a bereavement. I am 56 and my partner is 53. We went, and whilst there they gave us a letter asking us to stay for 3 more months. They offered accommodation and some food. So we did, whilst they were sorting out their affairs because one of the owners had died. Well the 3 months became 2 years, and after the first year working long days sometimes over 12 hours 7 days a week, i said we shouldn't work for more than 40 hours. They offered at the beginning a payment of £250, so £125 each a month, which they sometimes put into my bank account and sometimes gave us cash. In Retrospect and during we felt used not valued and somehow obligated to assist them whilst they decided what they were going to do with the place. Local people thought we were the owners as we did so much. From office work to bookings to cleaning to waitressing to gardening to running events. Many times the owners went off and me and my partner were left to run the place with the paid staff. They are now selling it. We left there end of October 2015. What I want to know is can we retrospectively seek payment after the event, as I was informed that because we received monthly payments then legally we should of been paid minimum wages and that means they were avoiding their responsibilities as employers.

Thanks

[R0b]

Re: Volunteer or employee ?

Hello, if you left in October 2015, what is the purpose of wanting to know whether you were an employee or not? You are no longer working there and its been about 8 months so I don't think you have properly explained what you are seeking

[L3gal]

Re: Volunteer or employee ?

We want to know retrospectively if we have rights to back pay , as we heard recently that when someone pays you a nominal fee and expects you to work a minimum of 40 plus hours a week then they should of paid us a minimum wage.

[wales01man]

Re: Volunteer or employee ?

Have you asked for back pay? if they refuse is Court case

[Openlaw15]

Re: Volunteer or employee ?

Hello, if you left in October 2015, what is the purpose of wanting to know whether you were an employee or not? You are no longer working there and its been about 8 months so I don't think you have properly explained what you are seeking

The point Rob is that they were working there for 40-40 plus hours for nothing. The law is that an employee should be paid the minimum wage. In my view this is clearly an employee and not a volunteer. It is also discrimination under the Equality Act 2010 owing to their ages potentially. It is potentially victimisation too, ie burdening the older couple with employment tasks but receiving no pay. It is potentially illegal therefore and the owners could be convicted of a criminal offence, and they potentially could take the 'employer' to court for damages for all your losses, ie receiving no pay. It is very likely the court will imply an employment contract too.

[R0b]

Re: Volunteer or employee ?

Well OL they were not working 40 odd hours 'for nothing'. They were being paid a sum of money plus food and accommodation. You cannot simply infer that they are automatically an employee as you have to look at the surrounding circumstances.

The owners could easily says they were self employed and this was a contract for services not a contract of service. So before ratting straight into the rights of an employee you would need to consider whether or not they were an employee in the first place.

Factors will include whether there was a mutual obligation on both sides, did the owner control the working hours or could they come and go as they please or could they work for anyone else, did they have a right to so many holidays per year.

Equally it could also be argued that they were volunteers, as they generally offer their time for free but they can be given out of pocket expenses as well as food and accommodation. Such a small sum per month could be seen as out of pocket expenses maybe?

As the OP has said in the first post, they felt obligated to assist but in what way was that? Were you specially told you must work these hours or you just felt obligated to help out at the place.

Obviously the longer you are with them there is a bigger chance that you could be seen as an employee.

I wouldn't say it is straightforward as yes you are absolutely an employee and is something that a court/tribunal would need to decide upon given all of the facts

[Openlaw15]

Re: Volunteer or employee ?

Me and my partner were asked to help out at a Hotel In Devon after there had been a bereavement. I am 56 and my partner is 53. We went, and whilst there they gave us a letter asking us to stay for 3 more months. They offered accommodation and some food. So we did, whilst they were sorting out their affairs because one of the owners had died. Well the 3 months became 2 years, and after the first year working long days sometimes over 12 hours 7 days a week, i said we shouldn't work for more than 40 hours. They offered at the beginning a payment of £250, so £125 each a month, which they sometimes put into my bank account and sometimes gave us cash. In Retrospect and during we felt used not valued and somehow obligated to assist them whilst they decided what they were going to do with the place. Local people thought we were the owners as we did so much. From office work to bookings to cleaning to waitressing to gardening to running events. Many times the owners went off and me and my partner were left to run the place with the paid staff. They are now selling it. We left there end of October 2015. What I want to know is can we retrospectively seek payment after the event, as I was informed that because we received monthly payments then legally we should of been paid minimum wages and that means they were avoiding their responsibilities as employers.

Thanks

With respect, why would you work for 2 years in a virtual full-time job for no pay?

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Well OL they were not working 40 odd hours 'for nothing'. They were being paid a sum of money plus food and accommodation. You cannot simply infer that they are automatically an employee as you have to look at the surrounding circumstances.

The owners could easily says they were self employed and this was a contract for services not a contract of service. So before ratting straight into the rights of an employee you would need to consider whether or not they were an employee in the first place.

Factors will include whether there was a mutual obligation on both sides, did the owner control the working hours or could they come and go as they please or could they work for anyone else, did they have a right to so many holidays per year.

Equally it could also be argued that they were volunteers, as they generally offer their time for free but they can be given out of pocket expenses as well as food and accommodation. Such a small sum per month could be seen as out of pocket expenses maybe?

As the OP has said in the first post, they felt obligated to assist but in what way was that? Were you specially told you must work these hours or you just felt obligated to help out at the place.

Obviously the longer you are with them there is a bigger chance that you could be seen as an employee.

I wouldn't say it is straightforward as yes you are absolutely an employee and is something that a court/tribunal would need to decide upon given all of the facts

What about the criminal offence of not paying the minimum wage, which was the point.

[R0b]

Re: Volunteer or employee ?

Because you pay minimum wage for an employee but not for a volunteer or where there is a contract for services.

[L3gal]

Re: Volunteer or employee ?

With respect, why would you work for 2 years in a virtual full-time job for no pay?





What about the criminal offence of not paying the minimum wage, which was the point.

A good question I have asked myself time and time again. Probably the fear of "What next". We were originally Guardians of properties which were owned by the person who died, so our original job was no more, and we drifted along, grateful to have somewhere to live and possible prospects leading us somewhere else. It has taken these past few months to process the whole experience.
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[L3gal]

Re: Volunteer or employee ?

Yes, all of the above has been discussed between us. The "owners" set meetings and times when we were expected to attend, and come up with ideas to move the business forward. There were many possible new beginnings with "New Partners" showing up, but these promises of potential never happened. The ebb and flows of "possibilities" became "cry wolfs".

[L3gal]

Re: Volunteer or employee ?

Thank you for your reply's. So I get its complicated... Can you advise me on where or what we should do next?... It feels important for my growth and self worth to stand up and value myself. thanks

[R0b]

Re: Volunteer or employee ?

I would suggest seeking some professional legal advice, or your alternative is to send a letter before action, then issue a claim and argue it in court, along with the costs involved

[L3gal]

Re: Volunteer or employee ?

I would suggest seeking some professional legal advice, or your alternative is to send a letter before action, then issue a claim and argue it in court, along with the costs involved

Thanks, We shall take your advice, and it feels right to formally write a letter before taking action.

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Is there a template for writing a letter of this sort,perhaps one that uses all the correct legal wordings?

[R0b]

Re: Volunteer or employee ?

Well before you decide to write a letter before action I would urge you to seek legal advice for a free consultation, or at least Citizens Advice Bureau. You wouldn't want to issue a claim only for it to fail because you haven't been able to argue the relevant legal issues.

[Openlaw15]

Re: Volunteer or employee ?

I would suggest seeking some professional legal advice, or your alternative is to send a letter before action, then issue a claim and argue it in court, along with the costs involved

Argue (legal persuasion) a point of law that you're both employees or, after the 2/ months concede (accept) if you have to that you were previously a volunteer. If the tribunal views you both as workers/ employees you have the right to tribunal remedies against the employer. So it's very likely the tribunal would do a preliminary hearing to see whether you're legally defined as an employee or worker before continuing to a full hearing.

In court, there is a strong risk of costs order being made against this couple by the hotelier/ landlord. Nah, my advice would be to go to an employment tribunal where out of 60,000 cases only 300 are likely to get a costs order, ie 0.5%. An employment lawyer is unlikely to take the claim on legal aid basis since the massive Tory cuts and a conditional free agreement is simply too risky and the lawyer may not offer it anyway. I would do this yourself I would not pay for blood-sucking lawyer when you can have a tribunal for free, ie if you're eligible (fee remission).