Casual workers - the key legal issues

8 August 2013

Often the legal status and management of casual workers is not given top priority. With numerous other pressures involved in running a football club, and the perception that casual workers have little or no rights, this is unsurprising. However, they have important customer facing responsibilities, and in fact enjoy important legal rights.
 

From stewards and turnstile operators, to programme sellers, hospitality and catering staff – these individuals play a vital part in the match day experience of football fans. For these frontline roles, clubs often rely on casual workers. A club’s demand for their services will be sporadic, depending on when and how often home matches take place.

In some cases, casual workers are engaged through agencies as “temps”. This article does not consider the legal position of agency workers in detail. However, it is worth noting that since October 2011 agency workers have enjoyed additional rights under the Agency Workers Regulations. Most notably, after 12 weeks in the same role (on one or more assignments) agency workers can claim entitlement to the same "basic working and employment conditions" (including pay) to which they would have been entitled had they been directly recruited, instead of engaged through an agency.

How casual is casual?

The term “casual workers” has no precise legal meaning. It is normally used to refer to individuals who are called on to attend work on an “as and when required” basis. Such workers are often referred to as “bank staff”. Often the intention is that the individual will not have employment status and all the legal rights which employees enjoy.

Although the term casual worker suggests an informal relationship between the two parties, the law in this area is tricky and clubs need to be aware that “casual workers” can be employees with all the full legal rights which this entails: for example, to written particulars of employment, a broad range of “family-friendly” rights, protection against unfair dismissal, and to a statutory redundancy payment.

For a contract of employment, three key elements must be present:

  • the employee must be under an obligation to perform the work personally;
  • there must be “mutuality of obligation” between the parties; and
  • the employer must have sufficient rights of control over the employee.

Many casual worker contracts try to avoid these key elements.

Tribunals are well aware this can be artificial. Therefore the contract terms (written or verbal) are only the starting point. All the circumstances need to be considered to determine the true nature of the relationship between the parties. A recent Supreme Court case provides a good example. The claimants were a group of car valeters. Their contracts stated that they were self-employed. They contained substitution clauses allowing them to provide substitutes rather than carry out the work personally and the terms also indicated that there was no mutuality of obligation, with no obligation on the employer to offer any work or on the claimants to accept any. It was held that these terms simply did not reflect the true relationship between the parties. In reality, the individuals were required to accept work offered to them and perform it personally, under the employer’s direction and control, in return for which they were paid.

Casual workers can also establish employment status via “umbrella contracts”. This occurs where the individual is engaged on a series of individual contracts, with breaks in between, but in reality there is an overarching contract (which may be implied) that continues even when the worker is not working (for example, during the close season or between matches). In one recent case the employee carried out a series of separate individual assignments with breaks in between. He was never given a contract and was told he was a casual worker. It was found that he had been engaged on a series of contracts, and that each involved sufficient mutuality of obligation to found a claim of employment status. The case shows that casual workers who work on an ad-hoc basis with breaks during which they do no work at all can still have employment rights.

Workers’ rights

The fact remains that many casual workers are simply that. They are not employees. Nonetheless they still enjoy important statutory rights. These include rights to paid annual leave, to the national minimum wage, and protection against deductions from wages, whistleblowing and discrimination.

Top tips for managing the risks

To avoid uncertainty and a high risk of disputes, clubs should consider carefully what they need from their casual workers. Their requirements and the reality of the working arrangements in practice should be recorded in well drafted contracts. If in reality you need the certainty and stability that employees offer, such as the requirement to accept work regularly when offered and to do it personally under your control, then the contract can still be structured to provide sufficient flexibility without straying into the dangerous territory of artificially attempting to avoid employment status. Zero hours contracts can be used in the case of casual employees, as well as workers.

Casual worker contracts and working arrangements should be reviewed regularly. The employment status of a casual worker can change over time, as the working relationship evolves. The longer the working relationship, the greater the scope for contract terms no longer to reflect the reality of the situation, meaning they should be updated.

The entitlement of casual workers to paid annual leave should be monitored carefully. Misunderstandings and disputes around paid annual leave rights are a common source of disputes between employers and casual workers.

Finally, remember that casual workers will always have important legal rights, irrespective of their employment status. Although unfair dismissal protection only applies to employees, the status of casual workers may not be entirely clear, and with discrimination protection applying in any event, employers should always take care in termination situations.

Republished with the kind permission of Football Club Magazine.

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On April 7th 2014 Andreas White commented:

Dear Lorenzo,

The supreme court case was called Autoclenz v Belcher. The other case was Drake v Ipsos Mori

Best,
Andreas

On April 5th 2014 Lorenzo Garcia commented:

Dear Mr Andrea White

In this article you make reference to a recent Supreme Court case and to another recent case. Can you please tell me what are these cases.

Yours sincerely

Mr Lorenzo Garcia

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