As we move towards the summer season, employers are likely to face disruption as a result of employees making the most of the lifting of Covid restrictions and the return of many public and social events. This is now, therefore, the time to put plans in place to manage this and limit the impact on productivity.
One way of managing the workload is the use of atypical workers. “Atypical workers” is a broad term that includes all those who work for an employer on a pattern that does not fit the traditional model of working full time, for a single employer, under an indefinite contract. Casual, fixed term, and annualised and/or variable hours, are all working types that fall within this definition.
These forms of working can be used most effectively by employers in sectors where work fluctuates, such as where the work sees seasonal peaks and troughs. Depending on the business need, there are a number of options employers can utilise.
Annualised hours contracts are a form of permanent employee contract in which the total number of hours to be worked in the year is set, rather than particular working days. These are used in industries with busy periods, where it is beneficial to have staff working more hours at certain times in the year, such as in teaching.
Fixed-term contracts are widely used for many different purposes. In these contracts, the employment is for a fixed period with a defined end date. These are of particular use for seasonal staff, such as an entertainment venue that operates during the summer months. Those working under these contracts would be classed as employees, and therefore they will have full employment rights, including the right to notice, unfair dismissal (subject to qualifying service) and transfer under TUPE.
Issues can arise with this sort of contract when successive contracts are offered, as continuity of service may be established. This can be the case where individuals return to the same job every season, if a link is found between the contracts, as in the following.
Absent from work due to temporary cessation — when no contract is in place as the work is temporarily unavailable. If the individual does not work because none is available, but then starts working again when it does, this could be seen as temporary cessation and therefore service may continue from the start of the original contract. The re-employment at the end of the cessation does not have to be agreed prior to it occurring. This was the case in Hussain v Acorn Independent College Ltd , which clarified that the questions to ask to establish temporary cessation are — did the contract end due to cessation of work, and (to be established at the end of the second contract) was this temporary?
In the case of seasonal workers, this is unlikely, due to Berwick Salmon Fisheries Co Ltd v Rutherford ,no temporary cessation of work applied, and therefore no continuity of service, where seasonal workers were unemployed for longer than they were actually employed for, every year.
Absence due to arrangement or custom — when at the end of the fixed term there is agreement for work in the future, such as in Curr v Marks and Spencer PLC , which held that there must be a “meeting of minds” to agree that the contract will continue.
This can happen where a fixed-term employee comes back every year, eg university students working over the summer, where agreement has been made for them to come back the next year. To avoid this, employers should avoid making any kind of commitment to outgoing fixed term employees.
Foreign seasonal staff
Employers in horticulture (including fruit, vegetable or flower picking) have the option of sponsoring foreign workers for a “Temporary Work — Seasonal Worker” visa (previously known as Temporary Worker — Seasonal Worker visa (T5)) of up to six months. This can be planned in advance, as applications can be made up to three months before the work starts. In order for an individual to be eligible for this type of visa, they must have sponsorship in place and enough money to support living in the UK — usually at least £1270 available (some exemptions apply). They cannot bring in family members or access public funds under this type of visa or take on permanent or secondary employment.
Casual/zero-hours workers or employees
A zero-hours, or casual, contract is a contract of employment or other worker contract under which:
the undertaking to do work or perform work is conditional on the employer making work or services available to the worker
there is no certainty that any such work will be made available to the worker.
(This definition is provided under section 153 of the Small Business, Enterprise and Employment Act 2015, which amended the Employment Rights Act 1996.)
Many employers with seasonal commitments or fluctuating workloads will benefit from zero-hours contracts. As opposed to traditional employment contracts, employers have no obligation to offer work if none is available and the individuals themselves are not guaranteed any pay as a result.
These are typically popular in industries such as cleaning, catering, hospitality and parcel delivery. According to the ONS, in 2021 zero-hours workers worked on average 20–25 hours per week.
Generally speaking, individuals on casual contracts can either be an employee or a worker. This employment status is determined by the structure of their contract. Recent employment status cases have placed great emphasis on the true nature of the working relationship. Employers need to be aware that although they may have initially intended for an individual to be either a zero-hours worker or employee, their employment status can effectively change over time depending on the requirements that are placed upon them in the workplace, such as an obligation to accept work (which would denote employee status), either explicitly, or implicitly where the same individual does the same work on a regular basis, without refusal or the use of individual assignments.
These types of contracts have many benefits, the most important of which is flexibility. This is what makes atypical working styles ideal for dealing with fluctuating demand or to cover for temporary staff shortages due to holidays or unexpected absences.