Q Icy conditions have made the high street our store is on practically impossible to commute down. The cold weather has meant a significant decline in customers and the temporary staff we have recruited are no longer needed. Can we terminate their contracts early?
A If you have recently recruited these temporary staff to provide cover only for the Christmas and New Year period, it is unlikely that they will be able to bring claims for unfair dismissal. Generally, unless an employee has at least 12 months’ service, they will not be able to bring a claim in relation to their dismissal. However, you should be careful if you have hired the temporary worker on previous occasions when short of staff as the gaps between periods of employment may not always mean that their continuous service is broken.
There are also exceptions where the 12-month service requirement will not apply. An employee is protected against being dismissed where the reason for dismissal relates to their reliance upon a number of statutory employment rights. So, for example, if the employee can persuade an employment tribunal that the real reason for their dismissal was that they had taken a day off to care for a dependant in an emergency, then regardless of their length of service you might be facing a claim for unfair dismissal. In these types of circumstance, the dismissal is regarded as automatically unfair by a tribunal.
Similarly, protection against discrimination will apply for all your temporary workers, irrespective of their length of service. This might be an issue where you are dismissing some temporary staff but not others. Those selected for dismissal may challenge the decision on the basis that it is discriminatory, for example, on the grounds that most dismissed were women or were of a particular ethnic origin.
Apart from statutory rights that the employee may or may not be able to rely upon, you will also need to take into account your contractual obligations to them. In particular, you should check if the contract provides for a fixed period of employment. Unless there is a clause allowing you to give notice early, you will be liable to pay compensation. In any event, you will be bound by the notice requirements and you will have to pay any benefits accrued up to the date the contract comes to an end. This would include accrued holiday pay.
Michael Ball, employment partner, Halliwells