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Hallett
Employment Law Services Ltd

Temporary, Seasonal and Casual Workers

Recent years have witnessed the growth of diversity of types of working relationships. Throughout Europe there has been a particular rise in “temporary” employment, notably in Spain (where this form of employment is now “the norm”). The UK has also witnessed a growth in forms and numbers of people involved in temporary, seasonal, and casual employment.

Essentially there are two broad categories of temporary work arrangements:

  1. Where the staff are not directly employed by the organisation, but supplied by another business – often an employment agency; and
  2. Where the staff are employed directly by the organisation, but for a limited period or defined period. Basically there are all types of fixed term workers, and include:-

    a. Seasonal workers,
    b. Casual workers,
    c. Short term contract workers,
    d. Temporary cover contracts, and
    e. Zero-hour contract workers.

Temporary Workers, “temps”

The legal position of “temps” provided by an agency to an organisation has proved to be difficult to define, and has been the subject of many contradictory court decisions.

The “temp” is usually registered with an agency, and offered bookings with an organisation as and when their need for workers arises. Typically day-to-day control of the work is at the hands of the client organisation, but pay will usually be the responsibility of the agency. The complication is that this arrangement splits the responsibilities that a single employer would normally have between two organisations. Recent court cases have indicated that in certain situations the client organisation, rather than the agency, may be treated as the legal employer – meaning it could be liable for an unfair dismissal of the worker. The cases suggest that this might arise if the worker has worked at the client organisation for a significant period (perhaps a year or more), whose work has been controlled by that organisation, and when the worker has had to book holiday, and been subject to the organisations internal procedures, such as its grievance or disciplinary procedures.

In order to ascertain the relevant employment law responsibilities between the agency and the client organisation the following factors are likely to be relevant:-

  1. The length of the work engagement,
  2. Whether the engagements are intermittent or not,
  3. Who pays the wages,
  4. Who controls the day-to-day work,
  5. Whether the worker provides work to any other organisation,
  6. The status as defined by any contractual documentation, and
  7. Whether or not the worker was treated as a permanent employee of the client organisation.

Seasonal Workers

Typically seasonal workers may be required by certain types of businesses, such as in tourism when there is a seasonal demand for an increase in workers. Similarly some businesses may need more workers for a short but demanding period such as the run up to Christmas.

Generally those workers are regarded as employees for the period for which they are engaged. They will enjoy the usual statutory rights enjoyed by employees, subject to the relevant necessary qualifying periods being fulfilled.

The termination of employment of a seasonal worker is subject to giving at least the statutory minimum notice unless the contract was for a defined fixed period from the outset.

If the gaps between each of the sessions of work are short, and the worker is routinely re-engaged, the continuity of employment may be legally preserved during the periods of absence as temporary cessations of work.

Casual Workers

This applies to workers that are employed on an “as and when required” basis. The relevant case law indicates that this type of arrangement does not produce a contract of employment, but this is only definitely the case if the individual has an absolute right to turn down a request for work without the risk of disciplinary action being taken against them. While this arrangement does not usually produce an ongoing contract of employment, the individual IS effectively to be treated as an employee during the time that he/she is actually carrying out the required work.

If a business wants to ensure that the casual workers do not gain full employment rights protection, it must ensure that the “casual” status is properly confirmed in writing. (PAYG Casual Employment Letter)

Zero- Hours Contract

This arrangement involves the employer stating that it does not guarantee any work, but only pays after work is both offered and performed. This is similar to “casual as and when required” type contracts. As with casual workers, this arrangement will usually avoid the individual obtaining the full range of employment law rights – particularly protection from unfair dismissal, and the right to statutory redundancy pay.

Cautionary Note

Although temporary, casual and zero-hours workers will not usually obtain the full range of employment law rights, they are still entitled to be paid at least the National Minimum Wage, they are also protected against unlawful discrimination, and the business is still responsible for maintaining their health and safety at work.

 

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