Boots could be risking investigation under minimum wage legislation after recruiting hundreds of volunteers to carry out coronavirus testing for the government, employment lawyers have warned.
And the Trades Union Congress said that ads for the unpaid posts, which state that applicants must be ready to work at least 32 hours a week testing NHS staff who fear they may have Covid-19, appeared to be “out of kilter” with the spirit of volunteering for the national effort to beat the disease.
MP Stewart McDonald wrote to Boots managing director Sebastian James branding the arrangement – revealed on Wednesday by The Independent – as “unacceptable”. Mr McDonald said it was “stretching the volunteering goodwill that the public has so admirably displayed to the point of being negligible”.
The SNP MP for Glasgow South demanded to know whether the company was receiving government payment for the tests or offering its services for free.
Other firms advertising for operatives to work at drive-through testing sites, such as Sodexo, are offering wages of up to £13.50 an hour and their ads suggest it would be desirable for applicants to have experience working in a medical, clinical or health environment.
It is understood that many of the volunteers recruited by Boots are furloughed workers who do not want to take on paid employment for fear of risking their status, under which the state pays 80 per cent of their wages while they cannot do their usual jobs. Boots says it is not making any profit out of the scheme.
But legal expert Lucy McLynn, head of employment at law firm Bates Wells, said that treating the testers as volunteers “feels pretty abusive” and may fall foul of minimum wage legislation, which is policed by HM Revenue and Customs.
The law exempts charities and fundraising bodies from the requirement to pay the £8.72-an-hour national living wage to people volunteering to help them, but does not allow companies to treat people as volunteers if they are taking the role of a worker, she explained.
“I think Boots are in rather dangerous territory with this, because the time commitment suggests these people are more like workers,” Ms McLynn told The Independent. “HMRC has powers to enforce the Minimum Wage Act and this looks set to be a high-profile arrangement, so they may feel they want to look at it.”
A volunteer agreement letter to be signed by those taking part in the scheme states that it is not creating an employment relationship. The company says will be flexible about the times to be worked, but adds that it is ”vitally important” that participants attend testing sites at the hours agreed. Volunteers are asked to give as much notice as possible if they want to stop, so that rotas can be rearranged.
Employment law barrister Nicola Braganza, of Garden Court Chambers, said the recruitment ads raised “a number of serious concerns”. Volunteer workers would miss out not only on pay but also on holiday entitlements and discrimination protections, she said.
“They appear to be relying on the goodwill of people to agree to work without pay or the benefit of any employment rights protection,” said Ms Braganza. “Other companies are paying staff to do the same work.
“Describing a person as a volunteer will not necessarily mean that they are in fact and in law a volunteer. The advert refers to a mandatory requirement to carry out specified contracted hours.
“Volunteers are asked to work long hours in physically and mentally demanding roles and presumably expected to comply with whatever instructions they are given. All of this tends to undermine that the relationship is a genuine volunteer – one with no mutuality of obligation.”
TUC employment rights officer Tim Sharp told The Independent that the company’s approach appeared to be at odds with the spirit seen when 700,000 people signed up to volunteer to help the NHS, at a time when many Boots employees were being paid by the state under the furlough scheme.
“It seems to me to be out of kilter with the spirit of the volunteering initiative, which was all about bringing in people who wanted to help out the health service,” he said. “Here we have a large business trying to recruit people to do what seem to be skilled and important roles which should be paid accordingly.”
In his letter to Mr James, Mr McDonald said he was “curious as to why neither Boots nor the UK government are offering pay and employment benefits to testers”.
“I am keen to know whether Boots has been contracted and receiving government funding for recruiting volunteers or if Boots is just offering its services to the government for free,” he said.
“Advertising these high-risk but crucial roles as volunteering would be to take advantage of the public’s goodwill. Whilst similar opportunities are offered as paid roles, Boots should be treating their applicants the same – fairly and properly as the key workers that they are.”
A Boots spokesperson said: “Boots stepped forward to support Covid-19 testing for frontline workers at the request of the government and we are proud to play our part in helping the NHS and other frontline workers return to work.
“During this phase of the crisis, this has not been in any way a commercial activity, and Boots has not sought to make any profit, only to support the NHS and the country as we have done for over 170 years. Our role in the UK testing programme, run by the Department of Health and Social Care, is to provide and train testers for some of the UK drive-through testing sites. Many Boots employees have come forward to take part and train as testers.
“We have also agreed to help with the recruitment of additional volunteers where required. We have been really pleased with the response to our request, with hundreds of people stepping forward to volunteer to do this vital work.”
A spokesperson for the HMRC declined to comment on the individual case, but said that enforcement officers are empowered to investigate minimum wage cases “if we have cause for concern either if we receive intelligence or our own records show that there is an apparent discrepancy which needs looking into”.
HMRC guidance for officers states that people described as volunteers may in fact be classed as workers entitled to the minimum wage if they are unable to withdraw their services at any time, if they are subject to requirements, obligations or standards from the organisation involved or if they are receiving training or any payment beyond necessary expenses.