It’s all very well taking on temps, but are you clear on how to bring the arrangement to an end without incurring any discrimination or unfair dismissal claims? Are you fully aware of what rights your temporary worker has? Most people aren’t, which is why we often receive queries about employing temporary workers through our HR Advice Centre, read this HR Blast to make sure you are not falling foul of the law!
In a nutshell… either people are Employed or they are Self-employed (or of course they can be ‘unemployed’).
If ‘employed’, they will either be employed by you, or perhaps by a temp agency that supplied them to you. If they are self–employed that means they are responsible for their own tax, holidays etc and they invoice you for their time. But to be genuinely (legally) self–employed they should have more than one client, i.e. not work exclusively for you, they can ask someone to fill in for them if they are not available, and they are not generally subject to the rules and procedures set for your employed staff e.g. your disciplinary, dismissal and grievance procedures.
If your temp is not working anywhere else, it would appear that your temp works only for you, so really, they should be employed.
Our guidance relates to people employed directly by the employer on a temporary contract – i.e. NOT through a ‘temping agency’.
So, what does it all mean? It means that your temporary worker has the right to be treated no less favourably than permanent employees.
Their rights include:
(1) By the 8th week of starting work for you, you have a legal responsibility to issue the individual with a written contract of employment (statement of particulars it is sometimes called) and that contract should set out if they are employed on a temporary basis (ideally, also giving reasons for requiring a temp e.g. in order to support during our Xmas or summer period or in order to support during an increase in workload).
Failure to issue a contract of employment by the 8th week that the individual is employed with you could be subject to a compensatory award being made to the employee of a maximum 4 weeks’ pay per employee! Be aware….
(2) Either immediately or not later than 3 months after joining you, you should invite the employee to join your pension fund.
(3) From day one, you should be doing their PAYE
(4) The employee is entitled to a minimum of 28 days paid holidays (or more depending on your Company’s annual leave entitlement), being mindful of their rest breaks and treating them exactly as you would treat a full-time permanent employee – albeit on a pro-rata basis (i.e. benefits reduced to reflect part time hours).
(5) They are also entitled to any bonus scheme and benefits offered to other staff, to paternity pay and leave, sickpay etc.
Any failure to treat the employee the same as your full-time permanent employees can land you in a pickle (to be polite about it) with the Employment Tribunal. That could then result in compensation being paid out to the individual, plus you incurring thousands (usually tens of thousands) in legal fees.
But employment status aside, what about how you ‘lose’ one of a number of employees?
However you phrase it or do it, effectively if you want to ‘lose’ a temporary worker and have not given them a contract that states their specific end date of employment, the situation here is probably one of redundancy (unless of course they are under performing or misbehaving). There is a best practice process to follow when selecting one or more employees for redundancy. Check out ACAS’s website.
If you want to lose one or more employees, all people doing the same job should be put into the selection ‘pot’ (this includes your full time and permanent staff). You then need to consult with either individuals or staff representatives over the selection criteria you will use to decide who is to go and who is to stay. Once you have your selection criteria and have identified who is at risk, you then have to hold various individual consultation meetings over a one–two week period with the individual/s selected, before ultimately dismissing. But beware, redundancy rights and redundancy consultation laws are quite complex so you need to read up on them if you want to keep your business safe from legal claims.
If you don’t think it’s a redundancy situation, another option might be to follow the best practice guidelines for dismissing a short service employee. To follow this route, you would need to have made a business decision that you just need to dismiss this individual, as opposed to needing to reduce staffing numbers generally. Here is a link to an article from Jaluch about how to dismiss a short service employee.
If you dismiss a short service employee, the law doesn’t require you to give a reason for dismissal. However, in our experience, giving a reason can help you to avoid any complaints or come back e.g. either in social media or to an employment tribunal. You really don’t want to dismiss a ‘temp’ only to find you have landed yourself with a discrimination claim.
As an example, if the casual worker you want to dismiss is a woman, whilst those not being dismissed are men, then she might bring a complaint of sex discrimination, i.e. claiming that you have treated men more favourably. Another type of discrimination claim might be for race or religious discrimination if the one you dismiss is different from those who remain. A third option might be if the one you dismiss is older or younger than the others… and the list goes on as there are in fact 9 protected groups within our society who can bring a discrimination claim!
So… to avoid problems with temporary staff, remember that ‘casual’ is seldom as casual as you would like, always issue temps with a contract within 8 weeks of them starting that sets out that they are temporary and why they are temporary, and that details when and how you might bring their employment to an end. This small administration task of issuing a contract could avoid a massive headache further down the line. Template contracts are available for just £99+VAT from our sister company www.docswizard.co.uk
Protect your business from legal claims… casual workers are more often than not formally employed workers, with a shed load of employment rights to boot!
We’ve mentioned it above, but DocsWizard is an incredibly cost-effective and easy to use HR documents site that lets you download all of the HR documents that you could possibly need!
Some of the documents include:
Let Docs Wizard do the hard work for you!
But if you need more than just a template document, then Jaluch can support with:
- Creating your own bespoke businesses contract of employment
- Advice and support when managing tricky situations or difficult employees
- Bespoke documents designed specifically for you
- Training for supervisors and managers to build competence and confidence to manage staff
Why not call our experienced HR Consultants for friendly, commercial advice to help solve your staffing issue in the most simple, stressful way possible! Contact Us.
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