Posted: Tuesday 6 December 2011
As the Christmas period approaches, many employers will be taking on additional staff to cope with extended opening hours and an increased volume of customers. Employers in the retail and hospitality industries in particular are more likely to require extra workers over the festive period. But how easy is it for employers to employ staff over Christmas? And what employment rights do temporary employees acquire?
Employers might not give much consideration to employment rights when temporary working relationships begin but it is important that employers are aware of the potential implications of taking on an employee over the Christmas period.
Apart from those individuals classed as agency workers or those employed under a fixed-term contract, there is no legislation in the UK which deals specifically with temporary workers. Rather, their entitlements are determined in the same manner as those of individuals employed on a permanent basis: this means that temporary employees will have the same employment law rights as all other employees.
For an employee to bring a claim of unfair dismissal against an employer he or she usually must have at least one year’s continuous service and it is unlikely that temporary employees, if they are truly temporary, will acquire a year’s service with the employer. It is proposed that the qualifying period for such rights will increase from one to two years as of 1 April 2012 (for an outline of this proposal and other employment law changes proposed by the Government, please see Innes Clark’s Employment Blog).
However, it is important to note that some claims for unfair dismissal do not require a year’s continuous service and certain claims may be brought from day one of the employment relationship. Dismissals relating to discrimination, whistleblowing, exercising certain statutory rights, and health & safety-related reasons are not covered by the qualifying period and unfair dismissal claims can be brought from the outset of the relationship. Temporary employees are still entitled to accrue paid holidays under the Working Time Regulations 1998, and to be paid the minimum wage. They are protected against deductions from wages and are entitled not to suffer discrimination. If there is a failure on the employer’s part, they may bring claims for such a breach to the Employment Tribunal.
Many employers will recruit staff through an employment agency or business. Such workers are classed as "agency workers" and will be covered by the recently implemented Agency Workers Regulations 2010. The main entitlement for agency workers under the Regulations is to receive the same basic terms and conditions of employment as if they had been employed directly by the hirer. Basic terms and conditions of employment include, amongst other things, terms relating to pay, duration of working time and annual leave. However, before this right will apply, the agency worker must complete a 12 week qualifying period on the assignment. Agency workers are also entitled to no less favourable treatment in accessing collective facilities and amenities, and this right applies to all agency workers from day one of their assignment.
Temporary workers may be engaged under fixed-term contracts. e.g., contracts which terminate upon a specified date, the completion of a particular task or the occurrence of a specific event. Under the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, employees with fixed-term contracts have the right to complain if they suffer less favourable treatment than permanent staff. However, a defence is available to employers if they are able to demonstrate that the treatment in question is objectively justified. Fixed-term workers who may not initially be engaged for a fixed term of 51 weeks or above may have their fixed term renewed and therefore qualify for protection from unfair dismissal.
As a result of all of this, employers don’t necessarily have carte-blanche when it comes to temporary workers. Care should be taken to ensure that a temporary solution does not become a longer-term headache.
If you would like to discuss this further please contact Innes Clark.