Coping with the Christmas peak: recruitment issues re seasonal workers

This article first appeared in QuickBite magazine.

With thoughts turning to Christmas, employers may be considering what staffing options they have to help cope with the party season when demand for their services may temporarily increase. Below are four points to think about when recruiting additional help for this seasonal rush of trade.

  1. Employment Status: Consider whether the individual taken on will be an employee, a worker or self-employed. Employment status is something that needs to be evaluated using the applicable legal tests as it is the way that the law views the individual that is important; not what you label them yourself. It can be a tricky exercise – remember all the recent cases on Uber and Deliveroo? These concerned disputes over employment status categorisation.Why is it relevant? Each category enjoys different employment rights – all three categories are protected from being discriminated against but only a worker and employee have the right to, for example, take paid holidays. If the individual is an employee, they will benefit from the most employment rights, such as the right to receive written details of their employment terms if they are employed for more than a month and, significantly, where they are employed for two years or more, employees benefit from the right not to be unfair dismissed.
  2. Fixed-Term Employees: Individuals recruited simply to cover a seasonal peak in work are often recruited on a fixed-term basis. Care must be taken to ensure that any fixed-term employees are not treated less favourably compared to permanent employees (unless that difference in treatment can be objectively justified). By way of example, if your permanent employees are entitled to receive a friends and family discount as a benefit of their employment, this should be offered to your fixed-term employee too. Additionally, if you hire the same individual on a number of short fixed-term contracts, it may be found that there is an overarching umbrella contract in place (essentially meaning that the individual is deemed to be employed by you throughout, including during the times when they are not carrying out the actual work). If an umbrella contract continues in place for two or more years, you need to be very careful when the arrangement finally comes to an end as it will likely be considered a dismissal in the eyes of the law. Therefore, you would need to have a fair reason for the dismissal and follow a fair termination process to avoid a finding of unfair dismissal.
  3. Part-Time Workers: Part-time workers are also legally entitled not to be treated less favourably compared to their full-time equivalents, unless there is some objective justification for the difference. Therefore, for example, if your full-time employees are entitled to a free uniform, your part-time employees should also be given that same benefit.
  4. Agency Workers: Relationships are often in place with recruitment businesses who provide “temps”. Even though that individual is unlikely to be considered your employee, they are still entitled to access to any collective facilities that you have (such as a staff room) and they should be given information about any employment vacancies that arise. Further, if their engagement lasts for at least 12 weeks, they become entitled to be paid at the same rate of pay and enjoy the same basic working conditions as your permanent employees.

All employers should think carefully about the above issues whenever recruiting additional seasonal personnel. As usual, it is always sensible for employers to accurately document the arrangements with the individual (ideally in advance of them starting work) so it is clear what terms and conditions govern the working relationship. This can help avoid dispute later down the line and ensure that your Christmas period remains a merry one.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.