Temporary workers

In
this series, we delve into the XpertHR reference manual to find essential
information relating to one of our features. This month’s topic…

Summary

A temporary worker is a person employed (or engaged) to do a specific job or
work for a specified period of days, weeks or months.

Temporary workers who are ’employees’ enjoy the same statutory employment
rights as their permanent counterparts in the same employment.

Those who are not employees have fewer statutory rights than their
colleagues who are employees.

A person employed under a contract of employment for a fixed term of three
months or less is denied access to certain rights otherwise available to
permanent employees.

Every temporary worker (whether an employee or otherwise) has the right not
to be discriminated against or otherwise victimised on grounds of sex, race or
disability.

Intervals between successive periods of temporary or fixed-term employment
with the same or an associated employer will not break the continuity of an
employee’s period of employment if, by arrangement or custom, they are regarded
as continuing in that empl-oyer’s employment for any purpose

Future developments

– The Fixed-term Employees (Prevention of Less Favourable Treatment)
Regulations 2002 will come into force on 1 October 2002. The regulations have
been published and can be viewed at
www.legislation.hmso.gov.uk/si/si2002/20022034/htm. They will apply to
fixed-term employees only.

Under the regulations, an employee on a fixed-term contract will have the
right not to be treated less favourably than permanent employees doing similar
work for the same employer at the same establishment. They will also be entitled
to terms and conditions of employment equivalent to those available to
permanent staff (on a pro rata basis), and will no longer be able to waive
their right to a redundancy payment if employed under a fixed-term contract
lasting two years or more.

The Social Security Contributions and Benefits Act 1992 will also be amended
to extend the right to statutory sick pay to all employees on fixed-term
contracts, regardless of the length of those contracts, and will revoke the
provisions in the Employment Rights Act 1996 that currently deny access to
guarantee payments and payments on medical suspension to employees engaged
under fixed-term contracts lasting three months or less.

– On 20 March 2002, the European Commission presented its proposals for a directive
‘on working conditions for temporary workers’. The main thrust of the draft
directive is to give agency workers (or ‘temps’) the right to the same pay and
benefits enjoyed by comparable permanent workers in the organisation to which
they are posted – unless there is objective justification for a difference in
treatment.

Under existing UK legislation, agency temps (who can accept or reject
assignments without penalty and do not usually qualify as ’employees’) are
entitled to a minimum four weeks’ paid annual holiday and the same restrictions
on their working hours as apply to other workers under the Working Time
Regulations 1998. They are also entitled to be paid no less than the
appropriate national minimum wage.

The directive will not apply to workers who have a permanent contract with
the agency that engages their services, if they are still paid between
postings. In their case, the member states may allow an exemption from the
principle of non-discrimination, given the extent of the extra protection they
enjoy under such contracts.

Copies of the proposed directive (2002/0072/COD) with its accompanying
explanatory memorandum may be accessed and downloaded from http://europa.eu.int/eur-lex/en/com/pdf/2002/en_502PC0149.pdf.
A consultation document on the proposed directive is available at www.dti.gov.uk/er/agency/consult.htm.
Comments on the proposal are requested by 18 October 2002.

– The Department of Trade and Industry commenced consultation on the
regulation of the private recruitment industry in May 1999. There was a further
limited consultation document in March 2000 and draft regulations, the Conduct
of Employment Agencies and Employment Businesses Regulations 2001, were issued
for consultation in February 2001.

The final draft Conduct of Employment Agencies and Employment Businesses
Regulations 2002 have now been published for further consultation. If enacted,
they will have a significant impact on the terms on which agencies supply staff
and give greater rights to the staff. They are expected to come into force in
the first half of 2003.

Rights

Statutory rights of all temporary workers

– Temporary workers have the right not to be discriminated against by their
employer (or would-be employer) on grounds of sex, marital status, gender
re-assignment, race, colour, nationality, national or ethnic origins, or
disability.

– They have the right to be paid the appropriate national minimum wage.

– They have the right to four weeks’ paid annual holiday. They cannot be
required to work more than an average 48 hours a week and must be permitted the
minimum daily and weekly rest breaks and rest periods prescribed by the Working
Time Regulations 1998.

– If engaged on a part-time basis, they have the right not to be treated
less favourably (in terms of wages, overtime pay, contractual holiday and other
benefits) than comparable full-time workers.

– They have the right not to be subjected to any detriment (including
dismissal) for making a protected disclosure (concerning alleged wrongdoing or
criminal activities on the part of their employer).

– They have the right not to have any monies (other than tax and national insurance
contributions) deducted from their wages without their prior written consent.

Rights exclusive to temporary workers who are employees

Temporary employees have the same statutory employment rights as their
permanent counterparts. For example, they have the right to be issued with a
written statement outlining the principal terms and conditions of their
employment. This must indicate the period for which employment is expected to
continue or, if it is for a fixed term, the date it is to end.

A person employed under a contract for a fixed term of three months or less,
or for the performance of a specific task not expected to last more than three
months, is not entitled to a guarantee payment in respect of a workless day
unless they have been continuously employed for a period of more than three
months ending with the day in respect of which the guarantee payment is
claimed. Nor is such an employee entitled to be paid if suspended from work on
medical grounds.

A person employed for a fixed term of two years or more forfeits the right
to a statutory redundancy payment if the contract contains a clause waiving the
right to such payment on the termination and non-renewal of that contract.

Statutory minimum notice periods prescribed by the Employment Rights Act
1996 do not apply to a contract for the performance of a specific task not
expected to last more than three months, unless the contract is extended beyond
that minimum period.

Temporary employees also have the right not to be denied access to
employment because of their trade union membership or non-membership, or
because of their refusal to become or remain a member of a trade union.

Temps also have the right not to be dismissed or selected for redundancy, or
tobe subjected to any other detriment, on grounds related to trade union
membership or activities or for taking part in efforts to secure trade union
recognition or for encouraging other workers to do the same.

Action point checklist

– Be aware of the distinction between
a temporary worker who is an ’employee’ and one who is not. If there is no
mutuality of obligation, there is no contract of employment.

– When employing a person on a fixed-term contract do not label
them a non-employee simply to avoid having to issue them with a written
statement of employment particulars or to avoid statutory rights dependent on
employment status.

– When engaging casual workers be aware that, while they may
not be employees in the legal sense, they are entitled to be paid no less than
the appropriate minimum wage and accrue entitlement to paid holiday or holiday
pay on termination (even if hired for just one or two days).

– Ensure temporary workers are not required to work more than
an average 48 hours a week and are accorded the rest breaks and rest periods
prescribed by the Working Time Regulations 1998.

– If a worker hired for a few days is asked to stay on for
several weeks or more, or takes regular employment on agreed terms, be aware
that the contractual relationship will change to that of employer and employee,
with all that entails.

– When conducting risk assessments under the Management of
Health and Safety at Work Regulations 1999, bear in mind your temporary, casual
and seasonal workers may be especially vulnerable to injury if put to work in
an unfamiliar environment without appropriate training.

Questions and answers

When does a temporary or casual
worker become an employee?

If you engage people on an ad hoc basis to help out during
staff shortages or busy times, accepting they may not be available when you
need them, they will not be employees.

But if you regularise the arrangement and undertake to provide
work on specified days and at specified times of the week, on the understanding
(accepted by them) they will present themselves for work accordingly, the
chances are the relationship will change to that of employer and employee.
Ultimately it will be for the tribunals and courts to determine the true nature
of the contractual relationship.

Does an employer have to pay
holiday pay to its casual workers?

Yes. With the abolition of the 13-week qualifying rule on 25
October 2001, every worker (whether an employee or otherwise) is entitled to
four weeks’ paid annual holiday and accrued holiday pay on termination
calculated from day one.

What are an employer’s legal
obligations in relation to agency temps?

Client employers must ensure agency temps do not work more than
an average 48 hours a week (unless they have their express written consent) and
that they have the minimum rest breaks and rest periods prescribed by the
Working Time Regulations 1998.

They must also ensure temps receive appropriate information,
instruction and training on any health and safety risks associated with the
work they have been hired to do. It is, however, the responsibility of the
agency to ensure they take their statutory holiday in the holiday year in which
it falls due, and that they are paid no less than the appropriate minimum wage.

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