Casual Workers Top Tips for Employers

Casual Workers – Top Tips for Employers
In an economy facing continued uncertainty, employers increasingly favour an agile and flexible workforce, using seasonal workers, casual workers and contractors. Recent cases involving companies such as Yodel, Uber and Deliveroo have considered whether individuals performing casual work are self-employed contractors or workers and, if they are workers, what employment rights they are afforded.
In this video we provide our Top Tips for employers taking on seasonal and casual workers, with a view to ensuring that the rights of workers are understood, and the risk of Employment Tribunal claims are kept to minimum.
Tip 1: Understand whether an individual is self-employed, employed or a worker
Unless an individual is genuinely in business on their own account, if they have agreed to perform work personally, it is likely that they have at least worker rights. The more control you have over how work is performed and the more integrated the individual is into your business, the more likely it is that they are an employee, attracting more onerous employment protection rights, particularly rights not to be unfairly dismissed and rights on redundancy. Understanding an individual’s status is therefore crucial and should be reviewed periodically.
Tip 2: All workers are entitled to written terms and conditions
Both employees and workers are entitled to receive a statement of their terms and conditions of engagement. The statement must be issued on or before the first day of work and must include details of pay, hours, holiday pay, sick pay and benefits. One advantage of a statement of terms of engagement is the opportunity to clarify and agree the parties’ intentions about whether the individual has the status of a worker or an employee.
Tip 3: Workers must be paid NMW via PAYE
Workers are entitled to be paid the National Minimum Wage applicable to their age group. HMRC only recognises employed or self-employed status. If an individual is not genuinely self-employed, for HMRC purposes, the individual is employed and you must operate PAYE, even if they only have worker status and not employee status. A worker may also be entitled to auto-enrolment pension contributions (subject to the usual qualifying criteria).
Tip 4: Workers are entitled to holiday pay and rest breaks
Only the genuinely self-employed are not afforded paid holiday. Workers are entitled to 5.6 weeks paid holiday in accordance with the Working Time Regulations, just like employees.
Holiday pay entitlement can become complicated where days and hours of work are variable, but the entitlement stands and failure to recognise it can result in claims for up to 2 years holiday pay.
Labelling a portion of hourly or weekly pay as holiday pay may provide a solution, but it is not without risk, and you must ensure that workers receive enough pay to satisfy National Minimum Wage entitlement.
Additional rights under the Working Time Regulations to rest breaks and maximum average working hours also apply to workers.
Tip 5: Workers may be entitled to Statutory Sick Pay
This is a frequently misunderstood entitlement. In addition to employees, some workers may also qualify for statutory sick pay, depending on their average earnings from your business and the worker also satisfying the normal eligibility criteria.
Tip 6: Workers are not entitled to family leave or related pay
Workers will not qualify for statutory family leave such as time off for ante-natal appointments, maternity leave, paternity leave and adoption leave, and they are not entitled to the associated family leave pay.
However, employers must be live to the fact that workers as well as employees are protected from pregnancy and maternity discrimination.
Tip 7: Workers are protected from discrimination and detriment
Although workers do not have unfair dismissal protection rights, they do have rights much the same as employees in relation to discrimination on grounds of the usual protected characteristics, such as race, sex, sexual orientation, age and disability.
Workers are also protected from suffering any detriment because they are a whistleblower (making a disclosure in the public interest) or because they have taken action in circumstances where their health and safety is in serious and imminent danger.
Tip 8: Employers may be liable for discrimination by their workers
An employer can become vicariously liable for the acts and omissions of his workers as well as his employees. This could include liability for discriminatory acts against other employees or workers, including harassment.
Workers must therefore be made aware of your policies on bullying, harassment and diversity and inclusion.
Further Advice
If you need advice to understand the employment status of individuals performing work in your business, and what their employment rights are, you can contact me or any of the Employment Team at Myerson for further assistance.