Employment Law Q&A - Casual Workers

Many employers engage workers on a casual basis, but it is important to understand exactly how a casual worker is determined and what that means in terms of employment rights.

Q: What is a casual worker?

A: The phrase 'casual worker' is often used to describe workers who are not part of the permanent workforce, but who supply services on an irregular or flexible basis, often to meet a fluctuating demand for work. Their legal rights will depend on their legal status, which could be either employed or self-employed and, in addition to this, whether they are a ‘worker’.

Q: What is the difference between employee, self-employed and worker status?

A: Employees benefit from a range of statutory employment rights including the right not to be unfairly dismissed, the right to receive a statutory redundancy payment, the right to equal pay and the right not to be discriminated against. Individuals who provide services but are genuinely self-employed do not enjoy such statutory employment rights. A company's obligations to someone who is self-employed will be largely governed by the contractual terms that have been agreed either orally or in writing. The category ‘worker’ was introduced into English law as a result of European legislation, including the Working Time Regulations, the National Minimum Wage Act and the Part-time Workers (Prevention of Less Favourable Treatment) Regulations. In terms of rights, 'workers' sit between employees and the self-employed. While workers do not enjoy all the rights of employees, they enjoy a range of the basic ones.

Q: What exactly is a ‘worker’?

A: It can get quite confusing for employers because employees are also workers, and some self-employed persons are workers. In practice, a worker is someone who has agreed to work or provide services personally for an organisation, but who does not qualify as an employee and who is not in business on their own account (i.e. providing work or services to their own clients or customers). Workers, therefore, include freelancers, staff provided by an agency and some self-employed contractors.

The main questions that Tribunals will ask when determining whether a person is an employee, a worker or self-employed are:

  • How much control does the "employer" have over the person?
  • How much financial risk does the person take on in undertaking the work or providing the services?
  • Is there a personal obligation on the person to accept and undertake the work or provide the services?

Please note that labeling a person in contractual documents a “casual worker” or “self employed consultant” will not necessarily result in that being their true legal status. Their true status is always dependent on all the facts of the case, not just the contractual documents.

Q: What rights do workers have?

A: Workers benefit from several basic rights including:

  • Protection against certain types of discrimination. Depending on the exact circumstances, this may include sex, race, disability and equal pay legislation;
  • Rights under the Working Time Regulations, such as paid holiday leave, restrictions on working hours and the right to rest breaks;
  • Right to the national minimum wage;
  • Protection for whistle-blowing;
  • Health and safety protection; and
  • Protection against unlawful wage deductions.

Q: What rights does an employee have that a worker does not?

A: Unlike workers, employees have:

  • Protection against unfair dismissal;
  • Protection under the Transfer of Undertakings (Protection of Employment) Regulations;
  • The right to maternity pay;
  • The right to paternity pay (leave); and
  • The right to statutory sick pay.

Workers also have no right to a statement setting out the key terms of their contract or to statutory minimum notice.

Contact us for further information on this subject. You should find the other articles in August’s 'Employment Brief' of interest.

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PaulBurton
Associate - Employment
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