Atypical workers

Q Is an employee on a fixed-term contract entitled to receive maternity leave and pay if she becomes pregnant prior to the expiry of the contract?

A All pregnant female employees are entitled to 26 weeks’ ordinary maternity leave. In addition, provided that she has completed 26 weeks’ continuous service by the end of the 15th week before her expected week of childbirth, a woman will be entitled to 26 weeks’ additional maternity leave following on immediately from her ordinary leave. This applies to women working on fixed-term contracts in the same way as it applies to women working on permanent contracts.
If a fixed-term employee has 26 weeks’ continuous service by the end of the 15th week prior to her expected week of childbirth, she will also qualify for statutory maternity pay. If the employer offers a more generous maternity package, fixed-term employees must be entitled to benefit from that package unless the employer can provide objective justification for excluding them.

Q Do fixed-term staff have rights on the expiry of their contracts?

A The expiry of a fixed-term contract is deemed a dismissal. Consequently, if a dismissal is procedurally or substantively unfair, provided an employee has accrued one year’s continuous service, the employee will be entitled to bring unfair dismissal proceedings. Employers must therefore ensure that they have a fair reason for dismissal, which in most cases will be redundancy, and that they follow the correct procedure for dismissal.

If the reason for the dismissal is redundancy, provided that the employee has two years’ continuous service, they will be entitled to a redundancy payment calculated according to their age and number of years’ service. Employees who are employed on fixed-term contracts that came into effect or were renewed after 1 October 2002 cannot waive their right to a redundancy payment.

The employer must follow a fair consultation procedure in making an employee redundant and offer them the opportunity to apply for any suitable alternative positions within the company. Failure to follow this procedure and make any necessary redundancy payment would deem the dismissal unfair. In addition, if the employee believes that the selection for redundancy is on the basis of their fixed-term status and there is no objective justification for this selection, the employee will have the right to bring a claim under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002.

Such a claim is not dependent on length of service. However, if the employee has been employed to complete a given task or cover a peak in demand, then it is likely that the employer could objectively justify the redundancy.

Q Are casual workers entitled to paid annual holiday?

A All workers are entitled to four weeks’ paid annual holiday under the Working Time Regulations 1998. There is no qualifying period for this right, so staff are technically entitled to this benefit from the day that they start work.

However, although there is no qualifying period for entitlement, under the regulations a system exists whereby workers accrue holiday during their first year of employment at a rate of one-twelfth of the annual entitlement for every month. For example, a casual worker who is employed for two months over the Christmas period on a full-time, five-days-a-week basis will be entitled to two-twelfths of the annual entitlement of four weeks’ paid leave, which is three and a half days. They will be entitled to take that holiday during the period of employment. If, as often happens, they do not take the holiday during employment, they will be entitled to pay in lieu of holiday at the end of the employment.

In terms of payment for holiday accrued, the amount of pay is that to which the worker is entitled under the contract of employment. If, as is often the case with casual workers, the normal working hours vary, the payment is calculated according to the average hourly rate of pay over the 12 weeks prior to the date of the annual leave. Such entitlement does not include any overtime payment unless guaranteed under the contract of employment. 

 By Sue Nickson, partner and national head of employment, Hammonds/ provided by XpertHR

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