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Employing Christmas casuals

16 November 2006

Temporary staff are often needed during the busy festive period, but you must be aware of their employment rights, says Karen Black of Boodle Hatfield

The Problem

I want to take on 30 additional casual staff over the Christmas and New Year period. What are my responsibilities to them and what rights do they have?

The Law

The Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (the "regulations") protect employees who do seasonal work and typically have contracts for a specified period.

The regulations apply from the first day of employment, regardless of the number of hours worked, and give employees the following rights:

• A right not to be treated less favourably than permanent employees doing similar work, unless the different treatment can be objectively justified.

• A right to be informed of any available vacancies with the employer.

• Where the employee considers that their employer may have treated them in a way which infringes the regulations, a right to ask the employer for a written statement of the reasons for such treatment.

Part-time seasonal staff also have protection under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, which have similar provisions to the regulations. They're entitled to the national minimum wage and are also protected under the Working Time Regulations 1998.

As a general rule, staff employed for the festive period only won't be able to claim unfair dismissal because they won't have the requisite one year's service. However, if a seasonal employee is dismissed on certain grounds, for example, for a reason related to pregnancy or childbirth, then she won't require this one-year service to benefit from unfair dismissal protection.

Expert Advice

The recruitment of seasonal employees to cope with increased business at Christmas and the New Year can bring a number of risks for employers.

You must remember that seasonal employees will be entitled to:

• As a general rule, the same pay and conditions as permanent employees.

• As a general rule, the same or equivalent benefits package as permanent employees.

• Minimum annual holiday entitlement of four weeks, reduced pro rata in accordance with time worked.

• Statutory sick pay.

• The national minimum wage (£5.35 per hour for those aged 22 and over and £4.45 for those aged 18-21).

• After one month's work, the right to receive one week's notice if the employer wishes to terminate the contract before it is due to expire.

• A 20-minute rest break for each six hours worked (different rules apply if the worker is aged 16-18).

• Daily and weekly breaks from work and special protection for night work.

• Protection from harassment, victimisation and the right not to be discriminated against on the grounds of sex, race, disability, religion or belief, sexual orientation or age.

Check list

• Review contracts of employment for seasonal workers and check that they're not discriminatory.

• Issue each seasonal employee with a written statement of terms and conditions within one month of their starting work.

• Remember that seasonal employees have the right to be informed of available vacancies.

• Don't treat seasonal employees less favourably than permanent employees, unless you can objectively justify such treatment.

Beware!

Seasonal employees have the right to present a complaint to an employment tribunal if they have been treated less favourably than a permanent employee. If they're successful, the tribunal will award unlimited compensation.

If you discriminate against seasonal employees (eg, on grounds of sex or race) they can bring a claim of discrimination and unlimited compensation can be awarded.

When dealing with a grievance or disciplinary matter, use the statutory procedures. Failure to do so may be evidence of discrimination.

And finally, don't forget that even a casual employee working only a few weeks over Christmas and New Year will have accrued some rights to paid holiday.

Contact

Karen Black Partner and head of rmployment law at Boodle Hatfield 020 7629 7411 www.boodlehatfield.com
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