Employers increasingly favour an agile and flexible workforce, using seasonal, casual or temporary workers to meet customer demand. Read our Top Tips for Employers to ensure legal compliance and avoid claims from casual workers.
Employers increasingly favour an agile and flexible workforce in an economy facing continued uncertainty, using seasonal, casual or temporary workers.
Recent cases involving companies such as Yodel, Uber and Deliveroo have considered whether individuals performing casual work are self-employed contractors or workers and if they are workers, what employment rights they are afforded.
We provide below our Top Tips for employers taking on seasonal and casual workers, with a view to ensuring that the rights of workers are understood, and the risk of Employment Tribunal claims kept to a minimum.
Unless an individual is genuinely in business on their own account, if they have agreed to perform work personally, it is likely that they have at least worker rights. The more control you have over how work is performed and the more integrated the individual is into your business, the more likely it is that they are an employee, attracting more onerous employment protection rights, particularly rights not to be unfairly dismissed and rights on redundancy. Understanding an individual’s status is crucial.
Both employees and workers are entitled to receive a statement of their terms and conditions of engagement. The statement must be issued on or before the first day of work. The document must include details of pay, hours, holiday pay, sick pay and benefits. One benefit of a statement of terms of engagement is the opportunity to clarify and agree the parties’ intentions about whether the individual has the status of worker or employee.
Workers are entitled to be paid the National Minimum Wage applicable to their age group. HMRC only recognises employed or self-employed status. If an individual is not genuinely self-employed, you must operate PAYE, even if they are only a worker and not an employee. A worker may also be entitled to auto-enrolment pension contributions (subject to the usual qualifying criteria).
If an individual works through their own limited company or personal services company, you will need to decide whether IR35 or the off-payroll rules apply.
If the worker behaves like an employee of your business or your client, the individual’s company, you or your client will need to operate PAYE in relation to payments made.
Only the genuinely self-employed are not afforded paid holiday. Workers are entitled to 5.6 weeks paid holiday in accordance with the Working Time Regulations. Holiday pay entitlement can become complicated where days and hours of work are variable, but the entitlement stands and failure to recognise it can result in claims for up to 2 years holiday pay. Labelling a portion of hourly or weekly pay as holiday pay may provide a solution, but it is not without risk, and you must ensure that workers receive enough pay to satisfy the National Minimum Wage entitlement.
Additional rights under the Working Time Regulations to rest breaks and maximum average working hours also apply to workers.
Some workers may qualify for statutory sick pay depending on their average earnings from your business and them satisfying the normal eligibility criteria.
Workers will not qualify for statutory family leave such as time off for ante-natal appointments, maternity leave, paternity leave and adoption leave, and they are not entitled to associated family leave pay.
However, employers must be live to the fact that workers are protected from pregnancy and maternity discrimination.
Although workers do not have unfair dismissal protection rights, they have rights much the same as employees in relation to discrimination on the grounds of the usual protected characteristics such as race, sex, age, disability and maternity. Workers are also protected from suffering any detriment because they are a whistleblower or have taken action in circumstances where their health and safety are in serious and imminent danger.
You could become vicariously liable for the acts and omissions of workers as well as employees. This could include liability for discriminatory acts against other employees or workers, including harassment. Workers must therefore be made aware of your policies on bullying, harassment and diversity and inclusion.