Many organisations will be taking on temporary, seasonal workers at this time of year and, while many individuals will just be grateful for the opportunity to earn a bit of extra cash, it’s important for employers to ensure that they don’t treat fixed-term employees unlawfully. Such workers enjoy extensive legal protections, even if these are not well known about.
Most seasonal jobs are very temporary in nature, it’s common for contracts to be given for a fixed-term of around 12 weeks or less. So, employers might be forgiven for thinking that there are no legal issues to think about. However, when it comes to employment rights, fixed-term employees are far from second class citizens. We set out below some of the common myths and misconceptions that exist around the employment of fixed-term employees.
It is not ok to pay seasonal staff working under fixed-term employment contracts less than comparable permanent staff or, to provide fewer or less good benefits, unless this can be justified.
Seasonal employees have legal protection against treatment that is less favourable than a comparable permanent member of staff and may bring a claim in the employment tribunal to enforce such right and recover compensation. A comparator would be someone employed by the same employer, in the same place and doing the same or broadly similar work
This protection applies to all the terms and conditions of their contract not just pay but, other benefits such as holidays, gym membership, private medical insurance and pension rights.
A tribunal will look at things in the round and consider a fixed-term employee’s entire package when deciding whether there has been less favourable treatment. So, for example, if an employer pays seasonal staff a slightly higher hourly rate but does not provide PHI benefits, they may be able to justify this.
Less favourable treatment is not unlawful, if it can be objectively justified
An employer can defend a claim of less favourable treatment if it can show that the difference in treatment is “objectively justified”. In summary this means that the employer must show the less favourable treatment was for a good business reason and that it was appropriate in the circumstances i.e. there was no less discriminatory way to achieve the aim.
If a fixed-term employee thinks they are being less favourably treated they can request written reasons for this from their employer
An employer must respond to such a request within 21 days and any statement from the employer is admissible in employment tribunal proceedings. If the employer ignores the request then a tribunal can draw adverse inferences from this in any subsequent case.
Fixed-term employees have enhanced protection against unfair dismissal
A fixed-term employee must not be dismissed or subject to a detriment by their employer just because they attempted to enforce their rights as a fixed-term employee or alleged these were being infringed. Such a dismissal is automatically unfair and a claim can be bought regardless of length of service (usually there is a two year qualifying period for unfair dismissal).
Fixed-term employees have the same protection against discrimination and harassment as other staff and the same immigration rules apply
Just because someone is working as a Christmas temp, they are still subject to the same immigration regime as any other worker, so the same documentation checks should be carried out by an employer. In addition, there is no length of service requirement for bringing discrimination claims so a fixed-term employee will be able to bring a claim in the same way as a permanent worker.
A fixed-term employee becomes permanent after four years
It is not unheard of for seasonal staff to be kept on. Although unlikely, it is worth remembering that after four years continuous employment an employee who was working under a succession of fixed-term contracts would become permanent.
It is worth pointing out that these protections are not just for Christmas! They apply equally to those employees working on fixed-term contracts for any other reason such as those intended to cover maternity leave or long-term absence.