Casual workers’ rights

Q What is a casual worker?

A The phrase ‘casual worker’ is often used to describe workers who are not part of the permanent workforce, but who supply services on an irregular or flexible basis, often to meet a fluctuating demand for work. Their legal rights will depend on their legal status: are they employed, self-employed and/or a worker?

Q What’s the difference between employee, self-employed and worker status?

A Employees benefit from a range of statutory employment rights including the right not to be unfairly dismissed, the right to receive a statutory redundancy payment, the right to equal pay and the right not be discriminated against.

Individuals who provide services but are genuinely self-employed do not enjoy such statutory employment rights. A company’s obligations to someone who is self-employed will be largely governed by the contractual terms that have been agreed either orally or in writing.

Also, a further category of worker was introduced into English law as a result of European legislation including the Working Time Regulations, the National Minimum Wage Act and the Part-time Workers (Prevention of Less Favourable Treatment) Regulations. This category sits between an employee and someone who is self-employed. And, while workers do not enjoy all the rights of employees, they enjoy a set of basic ones.

Q What exactly is a worker?

A A worker is anyone who works under:

  • A contract of employment (who will also be an employee) or
  • Any other contract, whether express or implied, and, if it is express, whether oral or in writing, whereby an individual undertakes to do or perform personally any work or services for another party, who is not a client or customer of any professional business undertaking carried on by the individual.

What this means is that a worker is someone who has agreed to work personally for an organisation, but who doesn’t qualify as an employee – using the test above – and who isn’t providing services as a professional commercial business. This will therefore cover freelances, staff provided by an agency and some self-employed contractors.

Q What rights does an employee have that a worker doesn’t?

A Unlike workers, employees have protection against unfair dismissal, protection under TUPE, the right to maternity or paternity pay or leave or statutory sick pay. Workers have no right to a statement setting out the key terms of the contract or to statutory minimum notice. Also the statutory grievance and disciplinary/dismissal procedures do not apply.

Q What rights do workers have?

A Workers benefit from several basic rights:

  • Protection against certain types of discrimination. Depending on the exact circumstances, this may include sex, race, disability and equal pay legislation
  • Rights under the Working Time Regulations, such as paid holiday leave, restrictions on working hours and the right to rest breaks
  • Right to the national minimum wage
  • Protection for whistle-blowing
  • Health and safety protection
  • Protection against unlawful wage deductions.

Q How do I tell if someone is an employee?

A The Employment Rights Act 1996 defines an employee as an “individual who has entered into or works under a contract of employment”.There is no simple test for determining whether an individual “works under a contract of employment”. The court will look at any written contract (if one exists) and the factual reality. There are two core elements that must always be present in a contract of employment:

  • There must be a requirement (whether written or implied) for the individual to provide the work personally and
  • There must be mutuality of obligation. If an individual is free to choose whether or not to take on work when it is available and an organisation is under no obligation to offer work, then there will be no mutual obligation and the individual will not be an employee.

Q Are there any other factors to determine whether someone is an employee?

A A court will look at: whether the employer is able to control how the work is done whether an individual is fully integrated into the organisation the economic reality of who bears the business risk associated with the individual’s activities whether the individual is subject to the company’s disciplinary code, and whether the employer deducts Paye and NI from the individual’s pay.

  • mohit

    There was a men who worked in a government department as a casual labour for approx 10 years . Suddenly he was terminated on one day without any notice . Is this is correct that he worked for for so many year an get terminated . I want to ask any skilled lawyer to plez help me and suggest me that their is any provincial to get that job or be permanent . contact no 8402932979….

  • saras

    i am working for the SGB as a casual worker I didn’t sign any contract what so ever but hired for 4months at the school is that normal or what should I do to know if it is legal for a person to work for 4months on a casual basis

  • Martin

    I have been a casual stage hand for the last 17 yrs basically working full time with a average of 40to 45 weeks per year with also variable hours anywhere up to 80 hrs in some cases in 1 week ,what rights do I have ,my employers are closing in the new year for a major refurb and up to now we haven’t been guaranteed any work within the rest of the company and was told point blank that we have no rights ,,what if anything can I do .am I entitled to a redundancy payment ?

    • Kodabar

      I’m just some guy on the internet, so my advice is tempered by that, but I don’t think you’ll get another reply on here.

      This all hinges on whether you’re an employee or a casual worker. This is a tricky area of law. Many people have had to go to court to determine whether they’re a casual worker or an employee. As an employee, you’re likely to have rights that cover you in this situation. As a casual worker, you pretty much have none.

      The test normally revolves around whether you are required to turn up and do work. Obviously, they’re not paying you to sit in an office from 9 till 5. But are you required to turn up when told? Or can you say ‘no’ to any and all work?

      It sounds from the hours you work (which is not a determining factor) that you are acting like an employee. A casual worker is someone who turns up as and when they are required and work in a flexible manner. They are able to turn down work and have no obligation to turn up just because the boss says so.

      If I were you, I would seek out an employment lawyer immediately. Make sure they cover this area of law. There’s a lot of case law in this area (which means court verdicts in other cases affect the interpretation of the law) which suggests the law is unclear as to who is a casual worker and who an employee. There is no standard definition. Most lawyers will offer a free initial consultation (may be over the phone) where they will outline the area of law involved and indicate what options they’d explore with you as well as likely costs involved.

      It doesn’t matter how long you’ve worked in the role (I’ve been a casual worker for about eight years) and it doesn’t matter what hours you work (although it could be a consideration). It mostly hinges on whether you are free to turn down work.

      If you’re a casual worker, you will basically have no rights, not even to redundancy pay. If you’re an employee, you probably have the right to return to work after the refurbishment and perhaps to payment whilst it’s taking place. No wonder your employer is so keen to say you’re a casual worker.

      But like I say, I’m just some guy off the internet. I don’t necessarily know what I’m talking about. But if I were you, I would approach an employment lawyer to discuss this before talking to your boss.