It’s all very well taking on temps, but are you clear how to bring the arrangement to an end without incurring any discrimination or unfair dismissal claims?
Joe Zee was employed in a restaurant. Just casual work was the idea, a short-term fix, but over the past 10 weeks, he’s been working up to 25 hours a week. But you never got around to issuing a contract of employment, you haven’t paid him holiday as you didn’t see him as a proper employee and now you are wondering whether you can just say to him that next week will be his last shift.
There is also a small complication in that Joe has two colleagues who are working on the same basis, but you want to keep them on. Joe isn’t quite as smart as the other two, hence why it’s him who is for the ‘chop’.
So can you just say ‘goodbye’ to Joe?
Well… it’s a good thing you wanted to check!
Let’s start with employment status and employment rights, then we’ll take a look at how you can dismiss one of a group of people doing the same job.
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.
So, as you haven’t suggested he is working anywhere else, it would appear that Joe Zee works only for you, so really, he should be employed. He is a full-blown ‘proper’ employee, whether you intended it or not.
That means that by the 8th week of starting work for you, you had a legal responsibility to issue him with a written contract of employment (statement of particulars it is sometimes called) and that contract should set out that he was employed on a temporary basis (ideally, also giving reasons for requiring a temp e.g. in order to support during our Christmas or Summer period or in order to support during an increase in workload). If it doesn’t say he was employed as a temp, or you haven’t issued anything, then he could argue he was offered and accepted a permanent role.
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….
So Joe Zee is potentially a permanent employee of yours with all the employment rights associated with that. Even if he has worked with you for less than 8 weeks, he will still have employment rights and the right to a contract of employment. If he (or others like him) worked/temped for 2 years with you, he would also get unfair dismissal and redundancy rights, as those kick in after 2 years of continuous employment.
More employment rights… either immediately or not later than 3 months after joining you, you should have also invited him to join your pension fund. From day one, you should be doing his PAYE, giving him a minimum of 28 days paid holidays, being mindful of his rest breaks and treating him exactly as you would treat a full-time permanent employee – albeit on a pro rata basis (i.e. benefits reduced to reflect his part-time hours). He is also entitled to any bonus scheme and benefits offered to other staff, to paternity pay and leave, sick pay etc. Any failure to treat him 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 to him, 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 the situation here is probably one of redundancy. 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, then all people doing the same job should be put into the selection ‘pot’. You then need to consult with either individuals or staff representatives over the selection criteria you will use to choose 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 would need to read up on them if you want to keep your business safe from legal claims.
As redundancy can be pretty complicated, 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, as opposed to needing to reduce staffing numbers generally.
If you dismiss a short service employee, the law doesn’t require you to give a reason for dismissal, but not doing so could help you to avoid any complaints – either in social media or to an employment tribunal. You really don’t want to dismiss Joe Zee only to land 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 matter of issuing a contract could avoid a massive headache further down the line.
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!
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