Every year it seems the Christmas decorations and the adverts on television appear earlier. As soon as we have packed away our Halloween costumes and the last of the fireworks disperse in our skies, the Coca-Cola advert announces that “holidays are coming” and from that moment on the build up to Christmas begins. Christmas shoppers are now out full force and festive parties are being booked up. Many employers, especially those in retail and services, will be putting plans in place to cope with this seasonal rush, including the drafting in of temporary workers. We thought it would be useful to summarise some of the options available to employers and some of the main pitfalls to bear in mind.
Research has shown a reduction in the use of agency workers, perhaps due to the introduction of the Agency Worker Regulations 2010 (AWR), covered in our ebulletin prior to their introduction in 2011 (see our previous article here). Despite this, agency workers remain a popular and flexible option for covering staff shortages during busy times of the year. For those who need a reminder, we have provided a brief summary of the main provisions of the AWR below:
From day one of the assignment
– Agency workers are entitled to access the employer’s facilities, such as staff canteens, childcare and transport.
– Agency workers have the right to know about permanent positions on offer with the employer.
After completion of 12-week qualifying period
– Agency workers are entitled to the same basic working and employment conditions as its permanent workforce including terms and conditions relating to:
– pay (and overtime rates)
– annual leave
– night work
– rest breaks and rest periods
– duration of working time
For those employers bringing in agency workers for a short assignment over Christmas, these rights should not pose too much of a burden. However, businesses bringing staff in for longer assignments over 12 weeks may face additional costs as a result of the AWR. To address this issue, employers may wish to use fixed term contracts (discussed below) or consider engaging staff from agencies who use the ‘Swedish Derogation Model.’ This is an exception within the AWR and provides that the right to equal treatment with regards to pay will not apply to an agency worker who has a permanent contract of employment with the temporary work agency and is paid a minimum amount between assignments when they are not working for the employer. This may allow employers to retain a pay differential between temporary workers and its permanent staff.
Fixed term contracts
For employers who wish to avoid the use of temporary work agencies, recruiting staff on a fixed term contract is another solution. These may be most suitable where an employer wants staff working regular hours for a fixed period over Christmas. Employers should ensure fixed-term staff are provided with clearly drafted terms and conditions of employment setting out their working hours and how the contract is brought to an end.
Fixed term employees are protected by the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 which are designed to prevent less favourable treatment of fixed-term employees as compared to permanent employees (unless the less favourable treatment can be objectively justified).
For more information regarding fixed-term employees, see our ‘facts and fictions’ article here.
Casual workers offer a highly flexible option to employers and are always popular for seasonal cover. In particular, we have seen an increased use of zero-hours contracts as a way of engaging casual workers without creating an ‘employment’ relationship.
Recent media coverage has focused on the minority of employers who abuse zero-hours contracts by removing the ‘flexibility’ element by including exclusivity clauses and requiring workers to work when asked. Employers should keep in mind that in a genuine zero-hours contract, flexibility must be a two way street. Workers should be allowed to refuse work and should be allowed to work for other companies.
Our update about Government plans to deal with abuse of zero hours arrangements can be found here.
If you expect Christmas staff to work regular hours over Christmas, then you should consider the alternative arrangements discussed above. If you are offering regular work which is regularly accepted, you run the risk of creating an employment relationship between the employer and worker which has a number of legal implications. This is something we can advise on – please contact us if we can help.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).
Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.