ATYPICAL WORKERS
Overview
•Agency Workers
•Casual Workers
•Fixed-Term Workers
•Apprentices
•Volunteers, interns and work experience
•Consultants and Self-employed Contractors
•Flexible contractor
•Flexible working
•Homeworkers
•Office holders
•Part-time workers
Atypical Workers
• “any pattern of work which does not fit the
classic or traditional concept of an
employee working full-time for a single
employer under a contract of service of
indefinite length”
Agency Workers
• An individual engaged by an employment business to
perform work for one of the employment business’s clients
• Employment Agencies Act 1973
• Conduct of Employment Agencies and Employment
Business Regulations 2003
• The employment business sends the agency worker to the
client but the worker does not enter any separate
contractual arrangement directly with the client
• The employment business pays the agency worker
• Tribunals have to decide whether a contract of service
exists in the context of a tripartite relationship
Agency Workers – employees?
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Agency workers not employed by anyone?
Employment business as employer?
Client as employer?
Brook Street Bureau (UK) Limited v Dacas
[2004] IRLR 358
• James v Greenwich Council UKEAT
0006/06/1812
Casual Workers
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Casual worker has no legal meaning
Zero hours contracts
Bank staff
Umbrella contract
Zero hours workers – Key Issues
• Different treatment between zero-hours
workers and their full-time colleagues
justifiable?
• Employee or worker?
• Continuity of Service
• Holidays
• Discrimination
• Zero-hour contracts Bill?
Fixed-Term Workers
• Fixed-term Employees (Prevention of Less
Favourable Treatment) Regulations 2002
• Terminates on the expiry of a fixed-term; on
the completion of a particular task; on the
occurrence or non-occurrence of any specific
event other than the attainment by the
employee of a normal retirement age
• Parity of treatment between fixed-term
employees and permanent employees
Fixed-Term Workers - Mitigation of risk
of discrimination claims
• Audit contract terms and benefits offered
to fixed-term employees
• Make any necessary changes so that
fixed-term employees are offered the
same terms
• Keep records of the steps taken to
compare and calculate differences in
benefits
Fixed-Term workers – legal issues
on termination
• Reason for non-renewal – s.98 ERA 1996
• Establish which reasons in good time and
follow fair procedure
• Is notice required?
• Extending the contract – what are the terms?
• Acas Code does not apply
• Employers should not ignore procedural issues
when declining to renew a fixed-term contract
Apprentices – the Modern
Apprenticeship Scheme
• Apprenticeships involve on-the-job training for the
apprentice over a fixed term, during which the
apprentice also undertakes work for their employer
• “An enthusiastic and trained workforce underpins
Scotland's ambition for economic success.
Modern Apprenticeships support this goal by
providing individuals with the opportunity to secure
industry recognised qualifications while earning a
wage.”
•
http://www.skillsdevelopmentscotland.co.uk/our-services/modern-apprenticeships/
Modern Apprenticeships – Practical
Aspects
• Employment status
• “Each Participant must be employed by an employer:• for whom he or she is working as an employee to consolidate the
skills acquired during his or her MA Programme; and
• by whom the Participant is directly managed whilst performing his or
her apprenticeship tasks on a daily basis.
• Participants following a Modern Apprenticeship framework will be
subject to the same policies and procedures as other employees of
the organisation with which they are employed and the Provider
must procure that each Participant is informed by his or her
employer of their rights as an employee, including those relating to
the national minimum wage.
• For the avoidance of doubt, a Participant cannot be self-employed.”
•
Skills Development Scotland ‘MA Public Rules for Public Funding of Modern Apprenticeships 2013/2014’
Modern Apprenticeship – Public
Funding 2013/14
• Skills Development Scotland administers the Scottish Government’s
public funding contribution toward the cost of training for employees
that employers wish to support through an approved Modern
Apprenticeship framework
• Maximising jobs with training opportunities for eligible young people
by providing a contribution to meet employer demand for 16-24 year
olds
• Maximising opportunities for the wider availability of higher level
MAs
• For aged 25 or over supporting the Scottish Government’s key
sectors and other frameworks such as construction
•
Skills Development Scotland ‘MA Public Rules for Public Funding of Modern Apprenticeships 2013/2014’
Volunteers, interns and work
experience
• Legal status of volunteers and interns?
• Expenses really payment for work – Migrant
Advisory Service v Chaudri UKEAT/1400/97
• Volunteer agreement was a binding
contract – Murray v Newham CAB
UKEAT/1096/99
• Expectations are not obligations – South
East Sheffield CAB v Grayson [2004] IRLR
353
Volunteers, interns and work
experience
• Required standards did not create mutuality of
obligation – Melhuish v Redbridge CAB [2005]
IRLR 419
• Volunteer not protected under discrimination law
– X v Mid Sussex CAB & Another [2012] UKSC
59
• Paid volunteer had no contract personally to
perform work – Breakell v West Midlands
Reserve Forces and Cadets Association
UKEAT/0372/10
Volunteers, interns and work
experience – how to avoid pitfalls
• Avoid making payments that could be
construed as wages
• Remove or minimise perks
• Reduce obligations on the part of the
volunteer
• Avoid using language that makes the
arrangement sound contractual
• Treat volunteers fairly
Consultants and Self-Employed
Contractors
• No legal definition of ‘consultant’
• Self-employed independent contractor who is
engaged to provide specific expertise for a
particular project
• Not an ‘employee’ or ‘worker’ – s.230(1) and
(3) ERA 1996
• May be in ‘employment’
• May be a worker for the purposes of ERA
1996, WTR 1998 and NMWA 1998
Consultants and Self-Employed
Contractors – Employee or consultant?
• Ready Mixed Concrete (South East) Ltd v
the Minister of Pensions and National
Insurance [1968] 2 QB 497 – Four stage test
• Mutuality of obligation?
• Personal service?
• Under control of the client company?
• Any other terms of the agreement which
point to employment status?
Flexible Working
• Right to request flexible working – Employment Act 2002
• The amendment of ERA 1996 to include ss.80F-I
• The Flexible Working (Procedural Requirements)
Regulations
• The Flexible Working (Eligibility, Complaints and
Remedies) Regulations 2002
• Employees with 26 continuous weeks’ employment who
have caring responsibilities
• Government has confirmed its intention to extend the
right to request to flexible working to all employees with
26 continuous weeks’ notice
Flexible Working – Right to
Request
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Limited in nature
A right to request to work flexibly
A statutory request procedure
An obligation on the employer to consider the
request properly
• A limited number of grounds on which the
employer can refuse the request
• It does not create a right to work flexibly or
part-time
Flexible Working – Right to
Request Procedure
• Employee could request a change of hours/times they
work/location
• Employee submits a written application
• Employee can withdraw a request; no further right to request
within 12 months
• Employer must arrange to meet within 28 days
• Within 14 days employer must either agree to request with start
date or provide grounds of rejection with appeal procedure
• Appeal must be within 14 days of rejection
• Appeal meeting must be arranged within 14 days
• Within 14 days after the appeal meeting the employer must
deliver the appeal decision
Flexible Working – grounds of
rejection
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Eight grounds for rejecting a request
The burden of additional costs
Detrimental effect on ability to meet customer demand
Inability to re-organise work among existing staff
Inability to recruit additional staff
Detrimental impact on quality
Detrimental impact on performance
Insufficiency of work during the periods the employee proposes to
work
• Planned structural changes
• Although this legislation has limited remedies, employers should be
mindful of sex discrimination and constructive dismissal claims as a
result of refusals
Homeworkers
• No statutory definition
• Majority now managerial, professional, technical or
skilled workers
• Tailoring standard employment contract clauses to
encompass homeworking
• Taking appropriate measures to protect
confidential information and personal data
• Reviewing health and safety implications
• Deciding whether special equipment should be
provided
Homeworkers
• Special planning or insurance?
• What arrangements should be made for
the management and supervision of
homeworkers
• Identifying the tax consequences
• Flexible working
• Indirect sex discrimination
Office Holders
• Not considered to be employees
traditionally
• Some may also have a contract of
employment
• Earnings or honorarium?
• Prison Officers Association and Others v
Gough and another UKEAT/0409/09
• Johnson v Ryan [2000] ICR 236
Categories of Office Holder
• Those whose rights and duties are defined by the
office they hold and not by contract
• Those who have the title of office holder, but who
are really employees with a contract of service
• Those who are both office holders and employees
• Full-time tribunal judicial office holders – workers
for the purposes of Article 157 TFEU
• Appointment described as ‘office’ – did not mean
that the holder of the office was not an employee
Part-time Workers
• Part-time Workers (Prevention of Less Favourable Treatment)
Regulations 2000
• Designed to ensure part-time workers not treated less favourably
than full-time workers
• “a person who is paid wholly or in part by reference to the time they
work, and who is not identifiable as a full-time worker having regard
to the employer's custom and practice in relation to workers
employed under the same type of contract”
• “a person who is paid wholly or in part by reference to the time they
work, and who is identifiable as a full-time worker having regard to
the employer's custom and practice”
• Regulations apply to all workers, not just employees
Part-time Workers
• They apply equally to men and women
• There is no qualifying period or upper age limit for
bringing a claim
• There is no exemption for small businesses
• Right not to be treated less favourably as regards the
terms of their contract or by being subjected to any other
detriment by any act, or deliberate failure to act, by their
employer
• Objective justification – legitimate objective which is
necessary and appropriate
• Sex discrimination and equal pay claims
Questions?
Marie Macdonald
Partner
mem@millersamuel.co.uk
0141 227 6032