With the Christmas celebrations looming we have entered into one of the busiest periods for seasonal workers. Many companies will be hiring temporary staff to help with the work demands this busy time brings.
How best can you manage the legalities around seasonal working?
There are several options for businesses needing to secure extra staff for the seasonal rush, ranging from employees on fixed-term contracts to part-time workers and casual employment. Employers hiring agency staff over Christmas also need to be aware of recent changes to the law on agency workers.
The new Agency Worker Regulations (AWR) entitle agency staff to the same employment and working conditions as comparable permanent staff after 12 weeks of service.
Employee vs worker – what rights do they have?
The most important point is that seasonal workers are entitled to the same statutory employment rights as permanent employees. To determine the full extent of an individual’s rights, establish whether they are classed as an ‘employee’, a ‘worker’, or ‘self-employed’. It’s also important to remember that the employment status is different from the working pattern – a staff member could fall under the category of an employee but may be contracted to just seasonal or part-time work.
A worker is someone who is employed on a casual basis and is entitled to basic employment rights, such as receiving the National Minimum Wage and, subject to their age, National Living Wage, paid annual leave, rest breaks and protection from discrimination. Workers are under no obligation to accept any work that is offered to them by the employer and likewise, the employer is under no obligation to offer them work.
An employee, on the other hand, is defined as a staff member who has a contract of employment, either written or verbal. They are also entitled to the above basic rights, but unlike workers, subject to their length of employment, they may also be able to claim redundancy payments, notice pay, unfair dismissal and the right to receive written explanations for dismissal.
Alongside this, they may be entitled to a number of rights relating to family leave, including parental and paternity leave and the right to request flexible working. Employers are obligated to supply employees with work as detailed in the contract, and employees are obligated to accept this work. This work must be completed by the employee themselves – they can’t send a substitute to replace them should they be ill, or unable to attend.
This differs from self-employed workers as they are contracted to supply a service. This means they can send a substitute in their place to complete the work. Self-employed workers can also choose their own working hours and are responsible for paying their own tax and National Insurance.
Selecting the right team to ensure performance
Hiring staff on a temporary basis doesn’t mean that employers should just take on the first person that applies for the position. Seasonal workers are often brought in to support the company throughout particularly busy periods, so these people still need to have the skills and experience that would be expected from a permanent member of staff.
It’s also likely that in industries such as retail and hospitality, for example, temporary employees will have close access to customers and need to be trusted to deliver excellent standards of service. For this reason, it’s important to plan ahead, ensuring that interviews can be held in plenty of time to carefully select temporary workers.
In circumstances where the employee has a contract of employment – this could be a fixed term contract or temporary contract which entitles the worker to a certain amount of work – it’s important to ensure the contract can be brought to an end before the agreed term if performance isn’t up to scratch.
Regularly review the employment status
A staff member’s employment status – whether they are classed as a worker, self-employed or an employee – is regularly checked by HM Revenues & Customs (HMRC), in order to determine their rights and their employer’s responsibilities. It also helps to assess how much tax each person should pay and any entitlements they should be receiving.
So how do you know the difference?
To determine which category your seasonal staff fall into, you need to know if they meet the majority of certain criteria shown here on the HMRC website:
If they fulfil the majority of the list; they’re an employee of the company. However, if they tick very few of these boxes then they may be classed as a ‘worker’ or as self-employed.
Remember that a ‘worker’ will typically carry out similar duties as an employee, but with fewer rights; so given the different rights afforded to an employee and not a worker, it’s vital you understand your role when taking on any temporary worker over any seasonal period.
To review a person’s employment status, HMRC will regularly evaluate the relationship between employer and employee and all the relevant documentation, such as contracts of employment. If an employer is found to be incorrectly documenting information, they could be subject to claims.
For this reason, it’s highly advisable employee statuses are reviewed often. It could be that a staff member was originally taken on under a fixed term contract, but if this contract was then renewed continuously over a four-year period, it would automatically change to a permanent contract.
Taking on seasonal members of staff can seem like a headache for employers yet temporary workers can be hugely beneficial for industries which experience varying workloads. So long as employers maintain a good temporary working policy, ensuring the correct documentation is in place and employee statuses are under regular review, there shouldn’t be any issues.
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