Author: Mike Tremeer
According to reports, online retail giant Amazon planned to hire 20,000 temporary staff at its UK fulfilment and distribution centres to cover the expected 2016 Christmas rush. Marks and Spencer had 14,000 temporary roles available and Argos was hoping to hire an additional 10,000 workers for the same period. Whilst it is to be expected that most businesses will not be recruiting at these sorts of levels, many will be considering taking on casual staff in one form or another over the festive period, or at other busy times.
There are a number of different arrangements to engage seasonal staff and the circumstances and particular requirements of the business in question are likely to influence which route is followed.
The simplest way to engage seasonal staff is perhaps to employ them directly, either on a fixed term basis or with a clause allowing their employment to be terminated with a short notice period. The benefit of this approach is that it gives the employer direct control over the worker and should not create any significant administrative burden for HR or management teams. Existing template contracts of employment can be used with relatively minor changes to the clauses dealing with the term of employment and termination.
If employing temporary staff directly, care should be taken to state that the employment will terminate “automatically and without the need for further notice” on a specified date. This will avoid the burden of having to send out a large number of termination letters to temporary staff during what is expected to be a busy period.
Alternatively, businesses may choose to use agency workers to fill temporary staffing gaps. This typically results in higher costs as the agency business itself will expect to receive a fee for its services. In addition, the contractual relationship between the three parties – the business requiring the agency staff, the agency itself and the agency worker – can be complicated. That is especially the case since the introduction of the Agency Workers Regulations 2010, which introduced additional protections for agency workers that apply both from day one of their assignment, and again after it has continued for 12 weeks.
The benefit of engaging agency workers is that they should require little in the way of administrative preparation and, in theory, management. Those tasks should be taken care of by the agency. However, depending on the sort of work that is required, that might not be suitable or appropriate in every case.
Matters get more complicated where businesses use “creative” measures such as zero hours contracts or any arrangement which deems the individual to be a “worker” rather than an “employee”, thereby avoiding full employment protections and rights.
Zero hours contracts can be useful where genuine flexibility is desired by both parties, meaning that there is a benefit gained by not specifying fixed hours, or even a minimum number of hours that must be worked. The worker may have childcare arrangements that fluctuate or other interests which means that their availability is not guaranteed.
Any employer still using zero hours contracts that seek to prevent the employee from taking up work with other employers, whilst refusing to guarantee any minimum level of payment or hours to the individual, can expect to receive little sympathy if any dispute arises. Such exclusivity clauses have been rendered unenforceable by recent legislative reforms that were implemented in an attempt to prevent the exploitation of workers.
Similarly, employers that seek to engage individuals in a way that avoids them being workers, with the consequence that they are not entitled to receive the national minimum wage and holiday (amongst other things), have attracted notable criticism in recent times. The judgment delivered by the employment tribunal recently in the case involving Uber drivers pulled few punches. Uber are now facing potentially significantly increased costs as well as considerable adverse publicity – all the result of them attempting to implement a complicated engagement arrangement with the individuals that ultimately performed Uber’s work for the public. This only goes to demonstrate that even large companies with considerable legal and financial resources available are at risk of “getting it wrong”.
In all circumstances we recommend that a business considers the form of any temporary engagement carefully, and that appropriate paperwork and contracts are put in place for the protection of both parties.
Mike Tremeer, Senior Associate, Fladgate LLP (firstname.lastname@example.org)