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Employers could have responsibilities towards seasonal casual workers too

9.09.2011

Seasonal industries such as agriculture, tourism and construction, often rely heavily on casual workers to plug the employment gap to meet demand for their services.

However, employers often fall into the trap that by labelling workers as casual they can avoid the responsibility or liabilities that follow on from employees or workers.  However this may not be the case.

Regardless of the casual basis of their work, casual workers may actually obtain employee status.  Where working arrangements remain informal but develop a regular pattern, a casual worker may be able to show a global contract of employment that continues to exist during the periods when they are not working.  The key question to determine if they a casual worker or an employee is whether there is sufficient ‘mutuality of obligation’ in existence during the periods when they are not working.

Mutuality of obligation is a complex matter.  In short, it means that for a person to be deemed an employee the employer must be obliged to pay and the employee must be obliged to do the work.  This simple explanation has been clouded over the years by case law involving, amongst other things, the right of substitution (where the worker is allowed to send someone in his stead).

It is important to establish the casual worker’s employment status from the beginning of the relationship, because this will determine their legal rights and protections, and the obligations the employer owes to them.  There are three broad types of employment status.  An individual may be:

Even where this irreducible minimum has been established, a tribunal will look at the overall picture and consider whether there are any other elements that suggest self-employment, rather than employment status.  For example, does the employee provide their own work equipment at their own expense?  The key issue with casual workers is not only are they employees during the time they provide services but can they show a link over periods when they are not working.

For more information and legal advice contact Amanda Finn, Associate and head of the employment team at Gullands [email protected]

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