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Flexible friends

25th March 2004, Page 42
25th March 2004
Page 42
Page 43
Page 42, 25th March 2004 — Flexible friends
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Which of the following most accurately describes the problem?

Transport operators increasingly rely on a flexible workforce.

Recent legislation has granted new

rights to such workers. Ruth Pottf

head of employment at the Road t Haulage Association, reports.

The precise definition of who is an employee and who is a worker differs slightly from one area of legislation to another. But in general, an 'employee' is someone who works for an employer under the terms of a contract of employment, whether written down, agreed orally or implied by the nature of the relationship. All workers, whether employed. or self employed, are protected by, and subject to, health and safety laws,

Short and fixed-term contracts

Short-term contracts, which are usually for a fixed term, are affected by the Fixed Term Employee (Prevention of Less Favourable Treatment) Regulations, meaning that those on such contracts have the right to be treated no less favourably than full-time, permanent employees in the company.

They are entitled (pro rata) to the same terms and conditions. including sick pay. holiday, bonuses, training and possible redundancy payments. Short-term contracts provide cover for Christmas holidays, long-term sickness and maternity cover and can be renewed. The benefits to an employer include cost savings; the worker need not be employed when not needed.

Disadvantages can include a lack of commitment by the worker and a succession of people on short-term contracts can lead to lack of continuity and increase training costs. Contracts that last more than two years, including where a short contract has been extended, are not automatically excluded from redundancy pay as they used to be. Therefore, redundancy and notice costs should be considered if the contract is likely to exceed two years.Written contracts must be issued for workers whose employment exceeds two months.

Casual workers

Casual workers work as and when required to by the employer.Usually they are regarded as being employed, and have to pay tax and national insurance contributions. But they can be self employed. Employers may not have to pay sick pay. hut casual workers will be entitled to holiday pay. Casual workers employed on a regular basis may consider themselves to he employed, although tribunals would look at the "mutuality of obliga tion", that is, whether the employer, under the terms of the contract, is obliged to provide work to the worker, and whether the worker is obliged to take the work.

Part-time workers

Part-time workers are protected by the Parttime Workers (Prevention of Less Favourable Treatment) Regulations These mean that parttimers are entitled, pro rata, to the same terms and conditions of employment as their full-time colleagues. h is expected that part-time drivers will become more commonplace once the Road Transport Directive is implemented in 2005, and companies are compelled to look at alternative ways of recruiting drivers.

Part-time workers, including drivers, can offer employers considerable flexibility. They can cover holidays and sickness, with additional hours worked at basic rates until such time as they equate to full-time hours, when overtime rates would normally apply. Increasingly. recently retired drivers are staying on part-time, providing a valuable, experienced, reliable resource.

Agency workers Agency workers provide a flexible, if expensive, resource.They can be used only when required, and the agency, as their employer, retains all employment obligations including those for sickness and holiday pay. Transport operators retain responsibility for ensuring that agency drivers are compliant with drivers' hours regulations. In due course, agency workers will be protected by the provisions of the Agency Workers Directive, which will entitle the workers to the same terms and conditions of employment as those in the company where they are working, providing they are retained for at least six weeks.

Self-employed Workers just providing labour to a company will generally be deemed to be employed, and in the haulage business they will usually need to have their own vehicles to be genuinely self employed.

The Inland Revenue defines self employed individuals as those who risk their own money, have the final say in how the business is run, provide the main items of equipment needed, be free to hire and pay for other people the work and correct unsatisfactory rig their own time and at their own expenst Inland Revenue will not rely on a written ment of what the relationship was intenc be, it will look at what has actually beer pening. In many instances the Revenue that the individual was an employee, wii employer being found liable for (considei past tax and NICs. A worker's liability to \ normally strong evidence against emplo) status. The Road Transport Directive cl■ the self-employed as those having an 0-lic being free to work for several customer not being tied into an employment, or si type of business relationship.

Genuinely self-employed workers d have any employment legislation prote so termination of such a relationship is ul restricted to the terms of the business cor However, there have been cases where employed workers have been given notic then claimed they are employees with den for holiday pay and unfair dismissal comp tion. Courts and tribunals look at the inter of the parties. whether the worker pro their own skill for a wage or remuner the degree to which the worker agrees subject to the employer's control or wh provisions of the contract are consistent s being a contract of employment. • FIND OUT MORE Department of Trade and Industry Fixed Term Employee Regulations: www.dti.gov.uk/er/fixed TIGER Tailored Interactive Guidance on Employment Rights, an online service run by the DTI. Road Haulage Association: 01932 841515


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