Temp workers: the rules
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WHEN TRADE is good, do you employ temporary drivers or loaders or other employees to put or to keep your vehicles on the road? Do you use casual or seasonal or other nonpermanent employees? If so, then you will need to know the law on their protection.
As in the case of permanent staff, the Employment Protection rules, most of which are contained in the Employment Protection (Consolidation) Act, 1978, apply only to "employees". So if you use self-employed labour or sub-contractors or agency employees, their protection (if any) lies against others. But once someone is your "employee" within the legal definition of that word, his rights are against you.
An "employee" works under a "contract of service" — as opposed to a self-employed person who has a contract for the provision of services. Only "employees" receive the benefit of employee protection law leg against unfair dismissal or redundancy).
If you control not only the employee's work but the way that he does it, then he is an "employee". However casual or short term, PAYE is deductible from his pay — and even if he calls himself "self-employed", the laws "looks at the reality and not at the form". So nondeduction may make you liable to the Revenue. And all legislation designed to protect employees will apply.
The law does not define a "temporary" employee, but periods of continuous employment regulate the employee's rights. For instance: 1, After 26 weeks, an employee is entitled to written reasons for his dismissal, on request. Penalty for failure to provide: two weeks' pay. 2, After 52 weeks (as defined — which, for technical reasons, may be as little as 49 weeks and two days), the employee is protected against "unfair" dismissal. If there are no more than 20 employees in the employer's entire "undertaking" at any time during the employee's service, the qualifying period is 104 weeks. This longer qualifying period applies only where the employment began on or after October 1, 1980, 3, Required statutory redundancy pay begins after two years' service, after reaching the age of 18 (minimum age therefore: 20) — and reaches a maximum (since February 1, 1982) £4,050 after 20 years' service at appropriate age and salary.
Remember: A, "Seasonal" employee is covered by the same rules as any other person, taken on for a limited period; and B, Where a "temp" is supplied and paid by or through an agency, he will normally be employed by and have rights against that agency, even if he actually works for you (for however long).
A woman worked regularly in her own home, packing goods for a company. Trade slackened and for weeks it provided her with no work. She claimed "guarantee pay" — a minimum sum (since February 1: £9.15 per day for a maximum of five days in any three-month period). The court held that she was not "employed" because her employers were under no obligation to provide her with work. She was not covered by normal employment protection rules.
So where a person is on occasional call — or fills in during busy times — and you have not undertaken to provide work, then the person is not "employed" by you and (eg) questions of unfair dismissal do not arise. Whether or not an individual who works for you is entitled to notice or to pay in its place ("pay in lieu") depends upon the terms of that service. The following are among those not entitled to notice: 1, Employees taken on for a fixed term — eg students on holiday, whom you employ for (eg) two months or three months or until a specified date. But remember: A fixed term employee is "deemed" to have been "dismissed" if you do not extend his term; so you might face unfair dismissal problems, but if the fixed term is for 12 months or more, you can effectively include a "contracting out" clause in the contract.
2, A person employed for a "fixed job", no matter how long it takes leg to reorganise your accounts or repair shop). When the job finishes, so do his rights.
3, Those who "repudiate" (or "smash") their contracts through most serious misconduct and whom you are therefore entitled to dismiss "summarily".
4, Those whose contracts are "frustrated". The bottom has dropped out of their contracts, usually because of illness so severe or permanent that the employee is unlikely ever to return to his normal work.
Among those who are entitled to notice or pay in lieu are: • Part-timers (ie those who normally work less than 16 hours a week or 8 hours after five years' continuous service); • Pensioners — neither of whom have unfair dismissal nor redundancy protection; • Short-term employees, not taken on for a fixed period or job.
An employee who does not receive his proper notice or pay in lieu may sue in a county court (jurisdiction now up to £5,000) or more in the High Court.
Section 2 of the Health and Safety at Work Act, 1972, requires employers to take such steps as are "reasonably practicable" to protect all employees "at work". It is no answer to a prosecution to sa "She was only temporary"!
Section 3 of the Act impose the same standard of care for those whom you do not empl but who are "affected by you' undertaking". This protection covers not only customers, neighbours, sub-contractors strangers, but also, eg, casua workers and other nonemployees who work for you You must give to every "employee" written particula of his main terms of service, within three months of the commencement of his employment or within four weeks of any change. These particulars (in whatever form should include, eg, sick pay rights.
"Statutory Sick Pay" will become payable from the Api 6, 1983 — broadly, by employ to all employees for the first eight weeks of sickness. Parttimers are included, unless th earn less than the current "Lower Earnings Limit" (at present, £29.50). But among those excluded are people tall on for fixed short-term contra not exceeding three months.
So if you are employing a driver on a temporary or seasonal basis and for a state period of up to three months, will not get statutory sick pay from you. But if you extend hi; contract beyond the threemonth limit, SSP will become payable. In this respect as in most others, the rules on SSP are highly complicated.
If, then, you employ nonpermanent people, those are t main legal rules that apply to them. If in doubt about any specific point, take expert advice. And do get skilled help preparing standard terms of service for your temporary an( other non-permanent employees, as hopefully you d for those who are with you full time and long term.