North Yorkshire Moors Railway General Discussion

Just reflecting on this specific point, and from a position as a charity trustee where I voluntarily accept risks which potentially include liability under construction regulations, I ask in return some questions:
1. Why does being paid a salary mean that the risk to my reputation, wealth and liberty is more acceptable?
2. Isn't the real determinant of risk the support (interpreted very broadly) offered by the organisation to delivery of these requirements?
3. Where is the boundary of liability, bearing in mind that even as a general dogsbody there may be personal legal liability?
4. Isn't some of the risk intended to be addressed through the charity's insurance?

I ask these questions because an obvious conclusion to the general question is "these jobs can only be done by paid employees". In the context of the charity sector as a whole, and railway preservation in particular, that conclusion has some very broad consequences that should make us all very concerned.

 

(1) Part of the reason management may be paid hansomely can be compensation for the personal risk involved.
(2) Yes, but the higher the level of assured competence in the organisation the greater the support.
(3) Many liabilities prescribed by law only apply to directors/ trustees.
(4) You can't be insured against criminal liability and, if found guilty, any defence costs covered by insurance would have to be repaid.
The requirement that unless the charity commission give specific consent trustees must be volunteers is recognised as a problem when their personal legal liabilities make no allowance for their volunteer status. As Sidmouth suggests it's fortunate, but surprising, that they are willing to assume the risks involved.

 

In which case, I wonder that you are willing to contemplate the risk of being a safety critical volunteer or a trustee, given those answers.

More seriously, I recognise these as significant, but will focus on (2). Support does come from processes and procedures, but it also comes from organisational culture. I'd suggest that this is the key factor, and has no correlation with whether individuals are paid or volunteers. Discussion framed in terms of remuneration misses the point, because whether a role needs to be voluntary or paid needs to follow, not lead, discussion of the role.

It also risks focusing on leadership roles, when the challenge at NYMR appears to be at all levels.

 

I avoided any suggestion as to whether support is provided by volunteers or paid staff . What matters for (2) is that the organisation has the necessary level of competence and processes as, for example, assessed by the ORR's RM3 management maturity model. You highlight the issue that applies to any volunteer in a safety critical or director/trustee/ senior manager role...............there is no defence of "I'm only a volunteer".

 

Without some idealism we wouldn’t be here of course, and my shorthand principles were a short idealistic aiming point. I did type a longer response, but the website ate my homework.

1. I agree we face societal, demographic attitudinal and skill set challenges relevant to heritage railways within the population. These challenges change both the amount of volunteering we can expect and the skills that present themselves to be used. I don’t think it changes the basic premise that we should aim not to pay for things we can get or get done for free.

2. Covid certainly changed things. It increased the need to be flexible and rethink roles. As an example if a railway employs a machinist today, might it be better if this role specifically included training willing volunteers tomorrow? Or hosting a working party on a weekday evening by having a workshop employee work 2pm to 10pm instead of their normal hours?

The rest I will cover in 4.

3. I was specific about two desirable things: a) that enough of the management understand volunteering and have done it themselves and b) volunteering on a railway attracts particularly committed volunteers who like being led by people they feel fully understand their commitment. Tensions are created if one or both of these elements are missing from too many of the management team

4. Getting the best means getting the best of what that person is willing to do. If that is less than the minimum required for a role, don’t have them in that role. I also think it means avoiding the kind of pressure we have all seen placed on individuals paid or unpaid to fill in all the gaps in the organisation and its performance. The aim is happy, fulfilled people (paid or unpaid) who aren’t “broken” by the railway. There was no inference that it should be about insisting that an accountant do accounting for the company. It is about maximising the value obtained from the working hours and skills that someone is prepared to give.

5. Everyone responds better if they know what the aiming point is, how the organisation will get there, what their role is, and how they have contributed. The goal has to be a contented workforce (paid and unpaid), for that is also much more likely to maintain the best possible flow of new volunteers.

 

It is right if freely given in full knowledge.

I don’t agree with the second point. The paid staff particularly the GM or CEO have an enormous influence on culture, but it isn’t first and foremost about the paid staff. Far better in my view to see all as employees and to manage the culture accordingly. I feel like you might have to expand on this culture point for me to really understand what you’re saying

 

Insurers would typically not distinquish in Employer's Liability cover between employees and volunteers. Whether the organisation has an additional Directors' and Officers insurance policy may be material. That can provide reassurance for volunteers in those roles subject to the exclusion of criminal liability which cannot be insured against as a matter of public policy.

 

I can only say that if exchanges have to be pecuniary, society is in a poor place

I took my view of how roles are fulfilled from the wider context of discussion, where views differ significantly on what it means to encourage volunteering in all roles. Working for a business with a range of ISO certifications, I am also absolutely confident that they at most confirm what we are, and do not define it - that comes back to organisational culture, where formal statuses and certifications can conceal more than they reveal.

I absolutely disagree on the last sentence - from a church background, organisational culture is set by staff, volunteers, and members at large. It is much wider than just employees, and if the organisational culture isn't right, people won't hang around, whether to join, start volunteering, or keep volunteering.

 

Can I ask why, then, is the NYMR spending a lot of (other people's) money on building the new MIC centre at Grosmont, for example? Does this not need suitably qualified people giving up their time for free to help train future generations - who in turn don't even get a diploma or certificate from a registered educational at the end of it? Are they not potentially taking on personal risk in doing so should an accident inquiry deem their training to be inadequate?? Maybe the NYMR should attempt to monetise the MIC training by formalising the training via some educational body and offering it as a service to other heritage railways?

I think the idea that no-one offers their skills as a way of helping out at their favourite charity is one of your more ludicrous ideas! From the joiner working on teak carriages to the former NRM official leading the writing of grant applications, via the former bank official helping to run the NYMR Foundation - and even yourself giving legal advice - many volunteers leverage their professional experience in their volunteering lives, add it to their time and costs with all donated free of charge. As for your fourth point, charity trustees have to act in good faith, and where the appropriate Board minutes are kept of all discussions to prove that good faith was maintained, it would surely be very difficult to prove criminal liability - we're not talking post office boards here! The risks you highlight are not so great as you prefer to show them, they would only be so if there were risky background decisions being made - surely you are not suggesting that happens?

 

I don't where you got my apparent idea from but I agree it's ludicrous. As a working volunteer I'm evidently displaying it's not what I've suggested.
I suggest on the criminal liability front you are unduly complacent. The prevailing culture today is one of finding someone to blame. Those in safety critical and leadership roles are very much in the firing line if things go badly wrong. The critical point is that it makes no difference whether they are employees or volunteers.

 

Sorry, I failed to answer your MIC question. My understanding of the MIC concept is that those with experience skills and competence voluntarily train others in those skills with the aim of them becoming competent in turn. If an incident occurred that could be shown to have resulted from negligent advice or instruction then those providing the training could be personally liable along with directors' and officers' vicarious liability even though they were unaware of the negligence.

 

I don't think I'm being unduly complacent, and I~ really don't see why you even feel the need to mention a distinction between paid staff or volunteers in this regard. In any safety critical matter I feel the volunteer would defer to a paid member of staff, and would indeed be foolish not to consult them. The real questions that would be looked at in any criminal investigation would be whether the person involved was appropriately qualified, whether any decision they had taken was reasonable, and whether it was taken in isolation or in concert with others. If others were in agreement and the decision was not foolhardy then whatever the outcome it is surely defensible even in today's blame culture. Even being blamed for something really doesn't prove clinical liability.

 

Broadly agree . The level of comptence expected of a director or trustee is partly objective (that of a reasonably competent director or trustee) and partly subjective where the individual has specialist skills or knowledege. So for instance more would be expected on financial matters of a volunteer finance director than of an employed director without such skills. It's not all about safety important though that is. There are numerous statutes that provide that personal liability to fines disqualification or worse will apply to any director /trustee whose "connivance or neglect" contributed to an offence committed by a company. Where I do disagree is the suggestion that heritage railways are not like the Post Office. The expectation and accountability of their directors and trustees is the same

 

Given the Post Office saga, I would hope that no organisation has so low a threshold of governance responsibility as has been applied there.

The point that has been impressed on me as a volunteer trustee/director by seasoned governance professionals is that the threshold for action is still high - terms like "connivance" or "neglect" apply in the context of using due care and diligence - whether under company or charity law.

I'd then take a different tack when it comes to specific professional knowledge. As a director/trustee, my duty is to assure myself that the appointee has the requisite skill and knowledge to fulfil the role, and to ensure that they have the wherewithal to do the role. As a volunteer, I'm looking to know that this support is available, either in terms of what's there already or to effect changes