Due to the ever increasing pressure on businesses to reduce costs and increase profits, employers are looking increasingly at alternative working patterns, other than 9 to 5. Also, in order to attract and retain the best staff, more flexible forms of working are required. The TUC estimates that the employment status of 30% of the UK workforce remains ambiguous and the numbers of agency workers, and those workers currently employed on part time, fixed term and casual contracts are increasing. Unfortunately, the status of such workers can on occasion be unclear and employers are often unaware of the employment rights enjoyed by different types of workers.
Given employers’ willingness to consider staff’s working patterns, this article provides a useful summary of some of the different types of working relationships which are available; some recent cases which have considered these rights; how employees can ask to change their working pattern and the consequences for employers.
Part Time Workers
Workers who may be engaged on a permanent basis, but whose normal working hours are less than what is usually considered full time, are referred to as part time workers. Such workers are protected by legislation [the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000], which makes it unlawful for an employer to treat part time workers less favourably than comparable full time colleagues with regard to terms and conditions of employment, unless such treatment can be justified on objective grounds. For example, part time workers should be given their pro rata equivalent holiday and benefit entitlements.
In a recent case, a part time worker attempted to have public holidays taken into account when calculating pro rata holiday entitlement even although she would not otherwise be working on the days on which the public holidays fell. Whilst the worker failed to establish less favourable treatment in this case (due to the fact that the business operated 7 days a week), it highlights the rights that part time workers have and serves as a reminder to employers to ensure that part time workers are provided with the pro rata equivalent rights and benefits of full time staff.
Fixed Term Employees
Employees may not be engaged on a permanent open-ended contract but may instead be engaged on a contract which is to last for a fixed period of time. These are referred to as fixed term employees. Fixed term employees have similar rights to part time workers. The legislation which protects them [the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002] only extends to employees (employee is a more limited category than worker).
Fixed term employees are entitled to the same holidays and sickness benefits as permanent employees and the same access to employment related benefits as permanent staff, unless the different treatment can be justified objectively.
For example, in a recent case an Employment Tribunal held that four government advisors on fixed term contracts were entitled to the same civil service redundancy payments as their colleagues on permanent contracts. This could have far reaching implications with costly consequences and again emphasises the need for employers to ensure that they consider carefully the appropriate contract to issue to staff at the outset. Be aware of the rights that fixed term employees have and the potential cost implications if employers get it wrong.
Agency Workers
Employers may decide not to engage an employee or worker directly at all, but delegate the provision of staff to a recruitment company. Previously, many regarded this as a useful way to avoid employment protection rights since the individuals engaged by the agency were kept at arm’s length from the business.
Unfortunately, recent case law has substantially eroded this perceived benefit and there is now a real risk that agency workers engaged by a business for a period of time may at some point become employees of the end user – the company who engaged the agency. Care should therefore be taken when engaging agency staff to minimise the risk of the individuals being found to have become employees. By limiting assignments to short periods of time, the risk can often be minimised and it is essential to ensure that the appropriate paperwork is in place regulating the relationship.
(Information posted in June 2006 and may not have been updated at time of reading).