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a benefit or a millstone?
These terms represent useful descriptions in the workplace but do not have any particular legal meaning.
The relevant legal considerations are matters such as continuity of service and hours of work, although in both cases the law is undergoing dramatic changes. Let's dispel some popular notions first, beginning with the proposition that temporary workers do not have contracts of employment. They do. They have a contract as soon as they strike a bargain to become employed. The accompany ing article on pages 2 and 3 explains why it is better to have contracts made in express terms rather than implied. This might be no less important for temporary than long term employees. If the employer wants an employee for just three weeks, can either side give notice before then, and, if so, for what reason? Is the employee bound to work for the whole of the three weeks or can he leave before? If he does will you be able to get another replacement quickly enough? How much will you lose if you cannot? Remember, an employment contract is just like any other contract—if either side break, they can be sued for damages. In the case of an employee, the employee can be sued for the costs arising from, say, the failure to give notice (advertising costs, lost profit from the idle vehicle and so on). Perhaps the ex-employee is not worth suing, but the threat of suing may definitely focus the mind. The employer may wish to decide whether the contract is: • Of uncertain duration; • Of uncertain duration but with a minimum period; • Of uncertain duration but with a maximum period; • A fixed period. This will affect questions of notice. Remember that an employee with less than four-week's service has no statutory right to a minimum notice period. After four weeks, that employee is entitled to a minimum period of one week's notice. However, these are statutory minimum periods. The law is that, in the absence of express agreement, every employee is entitled to reasonable notice which cannot be less than the statutory periods. Therefore, you can contract for the statutory minimum periods even where that would otherwise not be reasonable.
So, for the first four weeks of employment, a court might conclude that one week's notice was reasonable or implied. However, it cannot make that finding if the employer has expressly agreed that one hour's notice will suffice during the first four weeks. If, though, the employer makes the contract for a fixed period (say 1 November to 24 December) then there is no need to give any notice running up to 24 December because the contract is not then brought to an end by an action of the employer, but by the operation of the law of contract. It expires by time all by itself. The employer might even contract to have the right to end it earlier on different periods of notice depending on whether or not the employee has served out four weeks or not.
Legal right Notice is not the only term to be thought about. Suppose the employee goes off sick, is there any right to sick pay? Apart from Statutory Sick Pay, noone has any obvious legal right to sick pay. Therefore, an employer can stipulate "no sick pay". Essentially, if the contract says "there will be none of this benefit and none of that benefit" then the law has very little to say in the matter. It usually has something to say only where the position is left uncertain and an argument arises. Any words of caution about the extent of that principle will largely centre upon possible issues of unlawful discrimination.
Suppose the temporary worker is female amongst a largely male workforce, or vice versa, and is remunerated on different terms. Might there be an equal pay claim? There might be unless the difference could be justified. Employees with less than two years' service probably do not have protection against unfair dismissal.
Why "probably", surely this is "definitely"? Well, not any more. The statute says there must be two year's service to bring a claim and that the employee must work full time (16 hours a week plus). Last year, the Equal Opportunities Commission won its case against the Government alleging that the UK statute discriminated against part time workers by not giving protection because most part time workers were women. Therefore, having to be full time discriminates against women. Here the UK was in breach of the equality provisions of the European Union. The Court of Appeal has recently held that, at least for the period 1985 to 1991, the requirement to have two years' service also discriminated against females. That finding was based upon employment surveys for that period. What the surveys might show for 1995 is unknown—it might be the same again. On the face of it, the finding applied only to public sector employees because of complex issues concerning the applicability of European law directly to the state.
Do not relax, though! Another case earlier this year suggested that this principle of direct applicability of European law applied to all activities which were controlled by the state (do you have an Operator's Licence issued by the State?). Even if those new principles are extended and remain current, remember hauliers will still be using temporary employees who can misbehave, be made redundant, have fixed-term contracts and so on.
The process might, though, in future have to be more carefully thought out. Much of the answer will lie in the contract. These can be as flexible as the thinking which lies behind them.
Thinking through the relationship is, and will remain, the key.
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