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Seasonal workers'
employment rights

Those who work in the tourism and catering industries have to remain mindful of seasonal fluctuations in business. Christmas and summer, for example, bring with them substantially more trade than at other times of the year. One of the unique challenges for seasonal businesses is recruitment. Katee Dias, solicitor in the Employment Team at London Solicitors Goodman Derrick LLP, guides us through the quagmire of seasonal workers’ employment rights and advises employers to make sure they are up to speed with the law

When a person is hired for only a few months, or even weeks, they may still acquire certain employment rights. Before making seasonal hires, you should think carefully about the following issues.

Employee or worker

The first issue to consider is the employment status of the individual: in the legal sense, are they an ‘employee’ or a ‘worker’? This is an important distinction to understand because employees have far more legal rights than workers.

For example, an employee is entitled to the following, whereas a worker is not:

  • Written statement of the main terms and conditions of their employment
  • Protection of employment on the transfer of the business
  • Family rights (i.e. maternity, paternity and adoption leave)
  • Statutory minimum notice periods on the termination of employment
  • Protection against unfair dismissal (usually only if one year’s service is completed)
  • Statutory redundancy pay (after two years’ service).

However, do note that some rights are shared by employees and workers, including:

  • Earning the national minimum wage
  • Working time requirements, including rest breaks and paid annual leave
  • Rights against unlawful discrimination (e.g. sex, race, disability, age).

The question of whether an individual is a worker or an employee is not always an easy one as the statutory definitions are very similar:

  • An employee is someone who works for you under the terms of an employment contract. Such a contract can be written, oral or implied.
  • A worker includes any person who performs personally any work or services for you, whether under a contract of employment or other type of contract, but who is not self-employed. This includes casual workers, agency workers and even some freelance workers and consultants.

 Mutuality of obligation

Although there is no specific legal test, the most significant feature that differentiates between employees and workers is ‘mutuality of obligation’. If you are obliged to offer work to the individual when work is available and the individual is obliged to accept such work when it is offered, it indicates a relationship of employer and employee. Workers, on the other hand, usually have the ability to refuse shifts, are engaged only for one-off tasks or events, or are available on an on-call basis. If the individual is a worker, the ‘employer’ does not guarantee to provide work and may only pay for work done.

Remember, just because an individual is not a permanent member of staff, this does not mean that he cannot be classified as an employee and benefit from the increased protection that being an employee attracts.

Rights of fixed-term employees

You may find that working in the catering or hotel business means that quite often you need to take on somebody for a limited period of time. A fixed-term contract can help you achieve this. This contract can either end on a specific date or alternatively on completion of a particular project.

Fixed-term contracts have the advantage of enabling you to bring in additional skills and labour for a set period of time. There are, however, a number of points you need to remember about fixed-term arrangements where the individual is working as an ‘employee’ during their contract.

First, the expiry of a fixed-term contract is defined in law as a dismissal. Therefore, if the contract subsists for a year or more the employee will have an unfair dismissal claim if, upon expiration, the employer has no fair reason for allowing the termination and/or the employer does not use a fair procedure to effect the termination.

Second, if the individual is a fixed-term employee, they are protected against less favourable treatment compared to permanent employees. Common forms of less favourable treatment include the following: exclusion from the pension or bonus scheme, not providing benefits such as contractual sick pay or medical insurance, not being given access to promotion opportunities or being selected for redundancy because of their fixed-term status.

It is sometimes possible to treat fixed-term employees differently from permanent staff, but in order to do this lawfully you would need to ensure that you are able to justify objectively any difference in treatment.

Third, there is a legal requirement to provide all employees whose employment is to continue for more than one month with a written statement outlining the main terms and conditions of their employment. Such a statement should ideally be provided before their employment commences but in any event no later than two months after their employment begins.

Finally, note that employees who have been continuously employed for four years or more on a series of successive fixed-term contracts may automatically be deemed to be a permanent employee.

 Rights of part-time workers

Quite often, seasonal workers are engaged on a part-time basis as this is all that is required to assist the permanent staff. You should remember, however, that part-time employees and workers are entitled to protection from less favourable treatment (when compared to full-time equivalents).

Umbrella contracts

The final issue to consider is that even where an employee is not employed constantly, there may still be an overriding employment relationship that spans not only the times the employee is contracted to work, but also the gaps in between.

It is very common for employers to think that, because of the informal and sporadic relationship, the ‘casual worker’ is not employed. However, as explained, this is not always the case. Individuals employed on such a basis can still be deemed to be employees – each situation is determined by its own particular facts.

Creating a written statement of employmentCreating a Written Statement of Employment need not be as arduous as it may first appear. To find out exactly what is required, visit
www.businesslink.gov.uk/writtenstatement

For further information on all aspects of Employment Law visit
www.businesslink.gov.uk/employingpeople

For comprehensive information about all employment issues visit
www.businesslink.gov.uk

For further information regarding seasonal workers or advice on any aspect of employment law, email Katee Dias on kdias@gdlaw.co.uk

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