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Perhaps not so casual?

Casual workers are often used in seasonal industries, such as agriculture, retail and tourism or where there is traditionally fluctuating demand such as the construction industry.

Employers often fall into the trap of considering that by labelling workers as casual they are avoiding 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, they 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, which continues to exist during the periods when they are not working.  The key question is whether there is sufficient ‘mutuality of obligation’ in existence during the periods when they are not working for a casual worker to be an employee.

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:

•  An employee: they may not be unfairly dismissed, are entitled to maternity and paternity rights and entitled to a redundancy payment.

•  A worker: has entitlement to the national minimum wage and annual leave.

•  Self-employed: who have few rights against the person paying them.

In any consideration of employment status, the main questions to be asked are:

•  Is the individual required to provide their service personally? The fact that it is possible for the individual to send a substitute suggests that personal service may not be a crucial requirement of the relationship.

•  Is there an obligation on the employer to provide work and an obligation on the individual to do that work if provided?  If not, there may not be mutuality of obligation between the parties.

•  Does the employer exercise sufficient control over the way in which the individual carries out the work for the relationship to be properly regarded as an employment relationship?  If the individual is free to complete the work as they decide then this points towards self-employment (although, in the modern workplace, the question of control can be difficult to establish, particularly if the worker is senior).

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 or advice, Amanda Finn can be reached at a.finn@gullands.com