With Christmas now on the horizon, those in the retail and hospitality industries are building up to for their busiest time of year. With that comes the necessity for increased levels of staffing to deal with the increased demand – but what exactly are the employment rights of a ‘Christmas temp’ compared to their permanent colleagues?
The clearest differentiator between a Christmas temp and a permanent employee is that these temps will typically be put on fixed-term contracts with a start and end date, traditionally to start in the weeks/ months running up to Christmas and end after the holiday period is over (or into January for those in retail who may be supporting on the increased footfall of the January sales). If not on a fixed-term contract, then employment on a zero-hours contract with no commitment to any particular shifts may be implemented to deal with the busy festive period. Zero-hours contracts are less common these days since exclusivity clauses in these contracts (which prevent employees from working elsewhere) are prohibited. However, whatever form the contract takes there will be certain employment rights that will apply to Christmas temps in the same way as to permanent staff.
The rights of a Christmas temp are underpinned by the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (the Fixed-term Employees Regulations), meaning that fixed-term employees cannot be excluded from the contractual benefits and facilities offered to permanent staff and have the ability to complain of less favourable treatment if they do not receive the same benefits. In the same way as a permanent employee, Christmas temps (whether that be zero-hours or fixed-term) are entitled to receive a section 1 ERA 1996 statement – which will outline terms such as the probation period, hours of work, pay, etc. What’s more, these employees are also entitled to the same ‘day one’ rights as permanent employees, such as right to National Minimum Wage, right to paid holiday (that’s an annual entitlement of a pro rata amount of 5.6 weeks of annual paid holiday that will accrue during the time that they are working in the business). Given that they are unlikely to be able to take the time off, payment in lieu of the accrued leave is usually made when the contract comes to an end. Each day of holiday pay will need to be calculated on the basis of their normal take-home pay, so any overtime and commission earned during the contract will need to be taken into account.
Those who perform well during a fixed-term contract may well be offered permanent employment after the festive period, but this is dependent on the requirements of each employer. Fixed-term employees have a free-standing right to be informed of any permanent vacancies in the organisation for whom they work under the Fixed-term Employees Regulations.
Conversely, if things don’t go to plan for either the employer or the employee during their temporary contract there will be a notice period within the contract that will need to be adhered to – although this will more than likely be shorter than that of a permanent employee.
An itemised payslip is a must too which should give details about how much they have received in wages, and what deductions have been made, for example in respect of tax and National Insurance.
In addition, limits on working time should be considered. Normally the maximum working week should not exceed an average of 48 hours unless the individual has signed an opt-out under the Working Time Regulations 1998 (WTR). Under the WTR, all temporary workers are entitled to minimum periods of rest. That means they will need to get at least a 20 minute rest break in any day where they will be working six hours or more and workers under 18 will be entitled to a 30 minute rest break on any day where they work 4.5 hours or more.
The termination of a fixed-term contract is still a dismissal and would likely fall under either ‘redundancy’ or ‘some other substantial reason’ in relation to the potentially fair reason for dismissal. This will not necessarily be a significant risk where an employee has less than two years’ service, but employers should be aware of service continuing throughout back-to-back fixed-term contracts. In addition, employees on fixed-term contracts for four or more years will automatically become a permanent employee, unless the employer can show there is a good business reason not to do so. Employers should also remember that a Christmas temp has the right not to be discriminated against – in the same way that any other employee would also have that same right. Any less favourable treatment of a temporary worker or harassment on the grounds of sex, race, disability or any other ‘protected characteristic’ will be unlawful under the Equality Act 2010 no matter how temporary the contract. Similarly, all workers will have statutory protection against dismissal or detrimental treatment on the grounds that they have ‘blown the whistle’ on some unlawful practice in that they have made a protected public interest disclosure. Neither a discrimination or a whistle-blowing claim have any minimum service requirement.
What’s clear is that although a Christmas temp’s tenure may be short lived over the festive period, their employment rights and entitlements are not hugely different from their permanent colleagues. Even if Christmas temps are only in place for a few weeks, it’s vital that employers follow the right protocols to ensure that all statements and documentation pertaining to their contract are in place before their employment commences.