Reducing liability risks – a practical guide for charities
Despite continued pressure on funding in the current economic climate, UK wide research by Ecclesiastical Charity Insurance has found that public liability remains the major area of concern for UK charities.
This brief guide to charity liability summarises the key issues charities can become exposed to through various groups of people including the public, volunteers and employees and simple steps that every charity can undertake to protect themselves.
There are two main strands to liability:
• Employers’ liability – the legal liability of an employer for injury caused to an employee whilst acting in the course of their employment.
• Public liability – the legal liability for injury caused to members of the public or damage to their property.
Under Health and Safety Regulations the health and safety of any worker, or member of the public, is protected by law. As an employer, a charity has a legal duty of care to ensure the safety of anyone working for them, in whatever capacity and for anyone affected by the activities or work of that person.
Volunteers – employees or members of the public?
The Health and Safety Executive (HSE) strongly recommends, that people working as volunteers are given the same level of protection as employees.
Without formal contracts of employment, volunteer workers may not regard themselves as having employee status or obligations. However, they do have responsibilities to comply with good working practices and work within any parameters set out by their “employer” to meet Health & Safety requirements.
All voluntary or charity organisations must ensure that neither employees nor volunteers are put into a situation where they could be at risk. To do this effectively charities should:
• Carry out risk assessments
• Identify potential hazards
• Evaluate the risks and decide on reasonable precautions to prevent injury.
Understanding the risks
All organisations must be aware of regulations that apply to paid and unpaid workers and be responsible for ensuring that volunteers are aware of any risks.
Unsupervised volunteer workers who haven’t been made aware of these issues could pose a range of risks to charities which could expose them to public liability claims.
Take, for example, volunteers manning a charity stand at a public event and deciding that in addition to selling the charity’s official merchandise they will boost funds by selling homemade produce.
Should a member of the public suffer food poisoning as a result, it is quite possible that the
charity would be held responsible even though they had not instigated the sale of the produce. To protect yourself from any potential risks, volunteers should always be given clear roles and guidelines and asked to adhere to them.
Fundraising
Avid fundraisers may regard themselves as volunteers but that doesn’t necessarily give them the same legal status as volunteer workers. If damage to property or personal injury occurred because of the actions of the fundraising volunteer, the courts would look at how closely, if at all, they are connected to the charity.
Extreme fundraising
Faced with government grant cuts and reduced charitable giving, many charities feel under pressure to organise unique fundraising activities that help differentiate themselves.
Recent research by Charity Insurance specialists Ecclesiastical found that over half of charities were looking to more extreme fundraising methods to stand out. .Traditional fundraising activities such as cake bakes and street collections are now competing with the increasingly popular sky diving and bungee jumping.
If you’re contemplating some more off-the-wall fundraising ideas, the good news is that with good risk management it is possible to go to extremes safely.
Types of fundraising event
The Institute of Fundraising defines three different types of fundraising event:
• In-house events which are completely organised by the beneficiary charity’s employees and/or volunteers
• Sub-contracted events – where specialist third party providers are used
• Third-party events – where, often, the charity will know little about the planned fundraising activity
Implications for both employers’ and public liability can differ for each. In the first scenario, the situation is perfectly clear cut: as the organising body liability rests strictly with the charity. For the others it’s important reasonable precautions are taken to ensure everyone is safe, and no issues arise following the event.
Sub-contracted events
Generally, the risk element for a charity depends on its involvement in the organisation and execution of the activity: the higher the involvement, the greater the exposure to risk.
Logically then, by handing all of this over to a specialist third party provider you should be able to distance yourself from risk. In theory, the use of a specialist event organiser
creates a legal firebreak should a participant or spectator be injured at the event as liability should rest with the contractor rather than with your charity.
To ensure that this firebreak exists, however, the contractor must be chosen with care.
Charities should take all reasonable steps to ensure any company appointed to organise
a potentially hazardous activity is competent. To do this you should check:
• Correct insurance cover is in place – if the sub-contractor doesn’t have public liability cover your charity could be held legally liable for any injury or damage which occurs as a result of the event
• They belong to a recognised trade body – there are a number of trade associations that event organisers may belong to, most of which require members to abide by professional codes of conduct. For example, companies that provide bungee jumping should be members of BERSA (British Elastic Rope Sports Association) which offers certification for bungee jumping providers
• Proof of previous events and testimonials – from past clients that help to evidence their expertise
Always get evidence of the contractor’s public liability insurance
This should be done at the planning stage and should form part of any written contract or agreement. Verbal confirmation of public liability cover is not sufficient. Either a letter from the contractor’s insurer or a copy of the schedule of insurance confirming that insurance is in force should be obtained and kept on file.
Limits of liability vary but it is worth bearing in mind that many local authorities, in placing contracts with external organisations, require public liability insurance to the value of £5 million. In the event of someone making a claim for either property damage or personal injury, they will have to prove that the organiser is legally liable and has been negligent. This may involve going to court and the public liability cover would also normally include the legal expenses involved in handling or defending a claim.
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