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Simon Bond  

Partner, Employment

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Simon Bond Dec 2012

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How to keep your rural workers casual

 

Article date:  16/04/2015

In recent years there has been a notable increase in the use of casual workers, especially in the farming and agricultural industry.

Farm work is often seasonal and dictated by external factors such as market prices and customer demand, so taking on casual labour can be particularly useful thanks to its flexibility.

Casual workers can be employed in a variety of ways, including through the use of zero hour contracts where the business does not have to provide a minimum amount of work.

The popularity and use of zero hour contracts has increased rapidly. The Office for National Statistics (ONS) published figures last year which estimated that in early 2014, there were around 1.4 million contracts with no guaranteed hours (ie zero hour contracts). In addition, there were 250,000 people employed on a zero hour contract in 2012, which had increased from 189,000 in 2011 and 168,000 in 2010.

But, says Simon Bond, an employment lawyer with Black Country firm Higgs & Sons: "While zero hour contracts can be useful for employers, they are not necessarily straightforward to adopt and can result in uncertainty."

And he offers some simple advice to employers.

Are your zero hour workers employees?

It is important for employers to assess whether any individuals working for them under a zero hour contract are deemed to be employees, as this may entitle them to additional rights and protection such as from unfair dismissal legislation.

To determine whether casual staff could be deemed to be an 'employee', or whether they fall into another category, such as a 'worker' can be a tricky process. Even if the individual's zero hour contract states that they are not an employee, in reality the situation will be assessed on the true relationship between parties - rather than the contractual documentation.

In particular, the following three factors are often looked at to assess whether the individual will be deemed to be an employee of your business:

  • Personal Service - if the individual is required to provide his or her services personally, rather than being able to send a substitute to carry out the work in his or her place, then they are more likely to be classed as an employee;
  • Mutuality of Obligation - If the business is obliged to provide work and the individual is obliged to carry out the work when it is offered, then it is more likely that the individual will be classed as an employee; and
  • Control - If the employer exercises a sufficient degree of control over the manner in which the individual carries out the work, for example, by dictating hours of work, reporting requirements, putting in place day-to-day supervision, then it is more likely that the individual will be classed as an employee.

If the above three conditions are not fulfilled, then the individual may be a 'worker' rather than an 'employee', which means they would be entitled to less legal protection and rights under employment law.

Advice for employers

If businesses in the agricultural and rural sector take on casual staff, it is likely that they would prefer to employ them as workers rather than employees. This ensures maximum flexibility while avoiding the additional rights available to employees, such as the right to claim unfair dismissal on termination, the right to redundancy payments, maternity/paternity leave.

While there is no clear cut test or rule to follow, here are some points that may help:

  • Make it clear in any job adverts that the contract will not guarantee any set hours of work and that it is not suggestive of an employment relationship.
  • Put in place a comprehensive zero hour contract whereby there is no obligation on the employer to offer work to the individual and, crucially, no obligation on the individual to accept work that is offered. The individual should be free to accept or turn down offers of work made by the employer.
  • Ensure that the individuals are responsible for their own tools, equipment, clothing etc, where possible.

Finally comments Simon: "It is worth noting that whilst workers are not entitled to the same employment law protection as employees, they are still entitled to some basic rights, such as paid statutory holiday and statutory sickness pay.

"Therefore, employers should ensure that they still cover these basic rights when engaging casual workers."

To find out more about zero hour contracts, please contact Simon Bond at simon.bond@higgsandsons.co.uk

View all articles for 2015

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