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
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
Receive a written statement
Di Dismissal protection
Extended maternity leave
of up to 40 weeks
Time off for redundant
workers seeking jobs
Medical suspension pay
- 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
- 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
· 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
· 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
· 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.
· 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
· Where a worker is re-employed
following a claim for unfair dismissal, continuity is usually
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.
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
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
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.
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
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
· 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
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