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About the P&I Team Briefings Home | Responses | PFI Index | Policy Guide
ATYPICAL WORKERS BRIEFING - UPDATED FEB 02 No21

Introduction

With continued pressure on wage costs, employers are constantly searching for new forms of low-cost flexible working. For workers this often means growing casualisation in vulnerable jobs that attract reduced legal protection. But why do flexible or casual workers lose out and what arguments can Unison adopt to protect vulnerable members?


Who are atypical workers?

This phrase comes from Europe and tends to be used to describe anyone not employed on a conventional permanent basis. Examples include temporary workers, contract workers, agency workers, seasonal workers, term time workers, casual workers, sessional workers and so on. Atypical workers sometimes struggle to prove that they are working under employment contracts and that they have the requisite continuous service. This briefing deals with continuity, employment status will be covered by the next briefing.


Rights associated with continuous Service

Under employment and discrimination law there are many rights which do not require any specific period of Continuous Service. Atypical workers tend to have uneven or disrupted patterns of work and this may break continuous service and threaten their legal position.

Although the number of rights that require some continuous service is smaller, this list contains some of the most important forms of legal protection. For example, protection against unfair dismissal currently requires one year's continuous service. A full list of legal rights linked to is given below.

Statutory Protection

People Covered

Qualifying Period

Receive a written statement of conditions

Employees

4 weeks

Unfair Dismissal

Employees

One year

Di Dismissal protection under TUPE

Employees

One year

Extended maternity leave of up to 40 weeks

Employees

One year

Maternity Pay

Employees

26 weeks

Redundancy Pay

Employees

Two years

Time off for redundant workers seeking jobs

Employees

Two years

Guarantee pay

Employees

1 month

Medical suspension pay

Employees

1 month

 

Calculating Continuity

  • week counts towards continuity if all or part of that week is covered by a contract of employment, and weeks worked under a contract of employment always count towards continuity.
  • Continuity is calculated on a week by week basis and any week which does not count for the purposes of continuity will break Continuous Service. Where a contract exists in a particular week, it is not necessary for the worker to actually perform work under the contract to preserve continuity.
  • Continuous Service starts on the day the contract comes into effect, or on the first day of work, whichever is the earliest.
  • Service provided before the worker's 18th birthday counts towards continuity unless the worker is claiming a redundancy payment. As a result most child workers will have continuous service and normal employment rights.

Bridging gaps in service

Weeks where there is no contract can still count towards continuity if they fall within one of the relevant statutory provisions (see below).

Where there is a gap between two contracts, continuity may be preserved when the break arises as a result of:

-sickness or injury (gaps greater than 26 weeks between contracts break continuity)

- temporary cessation of work

- leave of absence under an arrangement or custom

Non-contractual absences through arrangement, custom or temporary cessation are not specifically limited by statute, but are defined by case law. Examples include sabbaticals and gaps in the contracts of term time workers.

A worker's employment is presumed to be continuous unless the contrary is shown to be the case. The onus lies with the employer to prove that a break in employment has the effect of breaking continuity and the employee gets the benefit of any doubt.

For the purposes of continuity, a week runs from Sunday to Saturday. Consequently the gap between contracts can be anything up to 12 days without having to rely on a bridging provision to preserve continuity.

Strikes and transfers

Workers who take part in industrial action will not break their continuous service unless they commence a permanent post with another employer during the dispute.

However, days lost to industrial action do not count towards the total length of Continuous Service. The number of days lost is taken from the full length of the dispute, irrespective of the particular day on which the employee returned to work.

In a TUPE situation the transferee is seen as stepping into the shoes of the transferor and thus the continuous service of existing employees is preserved.

When continuity actually ends

Continuous Service ends when the employment is terminated with full statutory notice.

If the full notice period is not given, Continuous Service is extended to include the full notice entitlement.

Where a worker is re-employed following a claim for unfair dismissal, continuity is usually preserved.

Example:

1. Sessional staff often have periods where they are not required to do work. UNISON could argue that this is a zero hours contract where the relationship survives. If not, we can still get continuous services under the rules on 'temporary cessation of work' or absence under an 'arrangement or custom' in which they are regarded as continuing in an employment relationship.

2. Some term time workers get new contracts after school or college holidays, while others stay under contract without performing any work. Either way, continuity is preserved. Even if there is no contract, the holiday is probably a temporary cessation or absence under an arrangement or custom.

Conclusion

There is a culture under which workers tend to fewer rights because of the contract under which they work. The law actually offers more protection than many people think if the correct arguments are made

UPDATE FEB 2002

What is Employee Status?

Many casual or atypical workers are excluded from legal protection because of the contract under which they work. 'Employees' have better rights than 'workers' who, in turn, have better rights than the self employed. Groups such as casual workers, sessional workers, agency

workers, homeworkers and others are vulnerable to exploitation under this system. So, when organising and representing sectors where these workers are employed, it is important to know how to argue for employee status for all paid staff.


Rights depending on employee status

Historically, access to most employment rights was restricted to employees. More recently, new rights such as working time protection and the minimum wage have been extended to all workers. But some key rights, such as protection against unfair dismissal, are restricted to employees. Under the Employment Relations Act 1999 the Government has the power to extend 'employee' rights to all workers. But this power has not been used.


Tests for employee status

There is little statutory guidance on how to identify an employee and there are a whole series of case law judgements.

While some of these have gone in and out of fashion, they all sit together as part of what is known as the multiple test.

CONTROL

The idea here is that employees are controlled whereas non-employees have more freedom to organise work according to their own needs and preferences. Employees are expected to: obey orders; work to hours set down by the employer; work under close supervision from management; and, use equipment provided by the employer.

MUTUAL OBLIGATIONS

This can be a problem for casual workers. When looking for an employment relationship, tribunals expect to see employers and employees sharing a mutual commitment to supply and perform work. So, when an employee accepts an arrangement where they work "as and when required" then this may be seen as casual work rather than employment. Similar problems arise where a worker has the right to turn down work offered by the employer.

Tribunals can be sympathetic to the argument that workers should not be penalised for agreeing to work flexibly. Also, there are cases in which tribunals have accepted that casual work contracts have converted into more formal employment contracts through repeated performance over a period of time.

FINANCIAL ISSUES

There are various characteristics associated with self employment: payment in lump sums or by the job; gross payments with no employer's national insurance; and, commission only or some other performance payment. Furthermore, self-employed people are expected to share directly in the success of their venture and to carry the cost of failure through some direct liability. None of these descriptions apply to employees. They may take part in some form of performance pay system but this tends to be an incentive formula rather than direct financial accountability. Employees also tend to be on PAYE pay systems.

INTENTION OF THE PARTIES

This means a tribunal will tend not to interfere with the intention of the parties if they both signed up to a contract labelled self-employed. But before such a contract is accepted as valid, the tribunal will stop

SUBCONTRACTING

to check that the label is an accurate reflection of the relationship between the parties and not a sham contract designed to evade the law.

This is the distinction between an employee's obligation to do their own job personally, and a self-employed person's ability to subcontract to another provider. This can be problematic in sectors where staff arrange substitutes for shifts they are unable to perform personally. But there is an important distinction between employment and self-employment on this point. Employees can still arrange substitutes, particularly if this is from a list of colleagues defined by the employer and the payment is made by the employer rather than the person who arranged the substitution.

Identifying a worker's contract

 

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