Author: Mike Tremeer
This article was previously published in Screentrade’s December 2017 edition.
Christmas is accused of arriving earlier and earlier each year, and that is no doubt true for cinema operators and other employers in the industry. Many will currently be looking for temporary staff to cover the Christmas period, or dealing with headaches presented by casual workers who are already in place. For employers there are a number of different options which can be used to engage seasonal staff to cover busy periods. The circumstances and particular requirements of the role are likely to influence which option is taken.
The simplest way to engage seasonal workers is to employ them directly, either using a fixed term contract or a contract which contains a short notice period. The benefit of employing individuals directly is that it gives the business control over the worker and should not create any significant administrative burden for HR or management teams who will already have processes in place for taking new employees on board. Existing contracts of employment can be used, with relatively minor changes to clauses dealing with the term of employment and termination.
However, 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 agencies will expect to receive a fee for their services, over and above the wage paid to the worker. 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 specific protections for agency workers which 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 administration and, in theory, management. Those responsibilities 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. It may be possible for cleaning and other service roles to be performed by agency workers, but it is rarely possible for “front of house” positions to be carried out by agency staff with no commitment or direct link to the company, nor any significant training.
Matters get more complicated where businesses wish to use more “creative” methods such as zero hours contracts or any arrangement which seeks to avoid the individual being recognised as a “worker”. 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. Many readers will use zero hour contracts legitimately to engage university students, who might be home over holiday periods, or other casual staff where there is no expectation of work.
But any employer still using zero hours contracts that prevent the individual 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 a dispute arises. Such exclusivity clauses have been rendered unenforceable by legislative reforms introduced in an attempt to prevent the exploitation of workers.
Similarly, employers that attempt to engage individuals in a way that avoids them being recognised as workers, with the consequence that they are not entitled to receive the national minimum wage and holiday pay (amongst other things), have attracted much criticism in recent years. The judgment delivered by the employment tribunal in the case involving Uber drivers in 2016 pulled few punches in criticising the employer for attempting to create a working relationship between the parties that bore no resemblance to the actual working relationship that was in place. Other employers in the “gig economy” have faced similar problems and have faced adverse publicity and potentially significantly increased employment costs as a result.
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)