The employment status of agency and other temporary staff is due to change dramatically in the next year or so. Richard Lister surveys the legal landscape
Most employers use temporary staff, whether engaged directly or through an employment agency. The use of temporary staff provides an effective means of readily varying the size of the workforce in response to the needs of the business. For example, temporary staff can be hired to cover staff absences - maternity, sickness, holidays and so on - to meet specific skills shortages, such as for IT projects, or to cope with fluctuating demands such as seasonal work requirements.
Since 1990, there has been a marked increase in the incidence of temporary work. The latest official statistics show that the proportion of temporary employees reached 7.1 per cent of all employees in 1996, compared with about 5.5 per cent during the mid-to- late 1980s (Labour Market Trends, September 1997). Temporary jobs have accounted for at least a third of new engagements since 1984.
The growth of temporary or "casual" employment forms part of a broader trend towards employment practices other than those involving permanent staff doing a standard working week. A "peripheral" workforce is represented by individuals working under non-traditional arrangements such as self-employment, flexitime working, teleworking, annual hours and zero-hours contract employment.
Problems of employment status
How is employment law responding to these fast-developing and increasingly fragmented working patterns? One particularly contentious aspect is the restriction of most statutory employment rights to "employees" working under a common law contract of employment.
In order for there to be a contract of employment, there must be "mutuality of obligation" between the parties - that is, an obligation on the employer to provide work and a corresponding obligation on the employee to accept the work offered. This creates problems for many temporary staff, since a key characteristic of "casual" labour is that in theory the employer can hire as and when it chooses and the worker is free to work when he or she wishes.
In the recent case of Carmichael and another v National Power, 2000, IRLR 43, the House of Lords overturned the Court of Appeal's decision that power station tour guides who worked on a "casual a