16 Nov 2020
Although the run-up to Christmas is likely to look and feel very different this year, many employers big and small will still be planning to take on temporary staff to handle increases in workload. Indeed, Amazon has already started recruitment for 20,000 seasonal workers and the Royal Mail has a staggering 33,000 vacancies to help sort the Christmas post and increasing amount of online shopping parcels.
Given the nature of temporary work during the holiday season, businesses are usually looking to hire and train people as quickly as possible, and in the scramble to fill places, employers can often fall foul of employment regulations or neglect best practice. Unfortunately, this means that conflicts between employer and employee at this time of year are not uncommon but they can be managed or avoided altogether if everyone is aware of their rights and responsibilities.
Here are some dos and don’ts for employers when recruiting this Christmas:
Before taking on any temporary staff, employers must be clear about what they can expect in terms of pay, working hours and availability. Anything discussed verbally with the worker should be confirmed in an offer letter and a temporary contract.
Within the contract, it is important to identify the employment status of any new temporary recruits. The two most common arrangements are employees and workers. Employees perform work under a contract of employment and are obliged to do this work (apart from when on leave or unwell) and employers are obliged to offer work to the individual when it is available. Workers are employees on a more casual basis and are able to refuse work, being paid only for the work they do.
Seasonal workers are often employed on fixed term contracts, allowing them to work until a date agreed with the employer. The employment contract needs to make it clear that the position is only temporary and does not guarantee a permanent position. Unlike permanent contracts, temporary contracts need to allow for more flexibility around working hours, for instance, being available at short notice to cover shifts.
While temporary workers will accrue leave in the same way as a permanent member of staff, employers may specify in their contracts that leave cannot be taken within a certain time period. After all, the whole purpose of taking on temps is to ensure maximum availability over a busy period.
Under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2012, if a worker is given a contract that will last for fewer than three months, the employee is entitled to one week’s notice to terminate their contract before the expected expiry date, provided they have achieved at last month’s service.
Employers should be mindful that if employees are coming to the end of a fixed term, and there may be an opportunity to work beyond that term, their contract should be extended in good time. If it is left too late, the employee can simply walk away with no further obligation to the business, forcing the organisation to recruit again.
It is important to remember that workers on a fixed term contract are entitled to be treated no less favourably than permanent employees. They are entitled to the same protections from discrimination as any other worker as well as all rights in relation to rest breaks, working hours and holidays.
There are differences, however, between an employee and a worker’s rights. Employees have more legal rights than workers but both are entitled to basic legal protections including:
After 12 weeks from their first day of employment, any temporary worker will qualify for the same rights as someone who is permanently employed to do the same job.
If you use an agency to provide staff to cover during busier times, the agency will be the employer of the temporary worker and as such, it is the agency’s responsibility to ensure the worker receives their rights. However, after 12 weeks, employees qualify for the same rights as someone employed directly, including the same pay as a permanent colleague doing the same job, automatic pension enrolment and paid annual leave.
If you find you are re-employing the same members of staff season after season, and there is an expectation of work, the employees may accrue continuous service, enabling them the right to not be unfairly dismissed. You should review their contracts to ensure they state the intended duration of employment and that there is no guarantee of employment during later seasons. You should also issue a new contract for each separate period of work.
If you decide to take on a temporary member of staff in a permanent capacity, it is essential that this is agreed by both parties in writing to ensure the terms of employment are clear.
If you are an employer and need some advice about the legal implications of taking on extra staff this Christmas, please contact Daniel Wilde, Head of the Employment Team at Harding Evans on firstname.lastname@example.org, 01633 760662 or visit www.hardingevans.com.