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Casual but equal
Page 38
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Many firms take on casual staff to cope with extra demand. But new laws say they must be treated as full-timers. Pat Hagan reports.
ROAD TRANSPORT operators planning to take on casual workers in the run-up to Christmas should get used to the idea they are now officially called "fixed term employees".
The Fixed Term Employee (Prevention of Less Favourable Treatment) Regulations took effect on 1 October last year. But to date, experts warn,they have received relatively little publicity despite carrying serious implications for many in the haulage trade.
Designed to give temporary workers similar rights to permanent ones, the regulations are complex; and bosses who choose to ignore them face the threat of an employment tribunal for discrimination. "The biggest problem for employers is going to be record keeping," says Christopher Over from transport law firm Over Taylor Biggs. "Firms have to keep track of all part-time employees, including what holiday they have."
But what do the regulations mean for employers and what action should they take to avoid ending up at a tribunal?
What is a fixed-term employee?
Anyone doing seasonal or casual work who has an employment contract for a short period such as a driver hired to cover a busy period and whose contract expires when business tails off.
What about agency workers?
These regulations do not apply to agency drivers as they are employed, and paid, by a third party.They also don't apply to apprentices or students on work experience placements, but do apply to university students working during their holidays and anyone on subsidised employment under the government's New Deal.
What rights do they have?
They have the right not to be treated less favourably" than permanent staff doing the same or similar jobs. Examples of less favourable treatment might include getting less paid holiday, not getting paid for bank holidays or being denied a bonus.
What if these benefits are set on an annual basis?
Some benefits such as season tickets, health insurance or staff discount cards are provided on a long-term basis. If a temporary worker is only around for a few months, employers still have to provide that benefit on a pro-rata basis, except where it's impossible to do so How are these workers compared with permanent staff?
A fixed-term employee can compare their treatment to that of a "comparable permanent employee", and where there are several, the employee can choose which one they want to be compared with. And if there's no-one comparable working in the same depot or office, they can pick one based at another site.
How do casual workers complain?
They can ask their employer for a written statement giving the reason for any "less favourable treatment"The employer must respond within 21 days and the statement may be used at an employment tribunal if the worker lodges a complaint.
Can firms get round the regs?
The regulations provide for what's termed "objective justification". In other words, if a company can demonstrate it is justified in treating casual workers less favourably, it might be let off. An example would be where the cost of providing a particular benefit outweighs the value to the worker. This might apply where someone is hired for just three months and is entitled to a company car but the cost of providing one is prohibitive and travel can be arranged some other way. But will this "get-out" clause help hauliers? "It will probably be very difficult to do," warns Over.
What about pensions?
It depends on the scheme and each individual case. But in principle fixed-term workers must be given the same access to occupational pension schemes as permanent staff. If someone is hired for a very short period, it may be possible to argue that the cost of including him or her is disproportionately high. But the worker might then be entitled to a salary increase to make up the difference.
What about redundancy rights?
Like other staff, casual workers are entitled to statutory redundancy payments if they have been continuously employed for two years or more. Often they are asked to sign a clause waiving their rights to this but any such clause signed since 1 October 2002 is invalid. Any signed before that date will still apply. •