With the festive season nearing, businesses take on temporary staff to cover the busy period. If you're staffing up right now or in the near future, you need to know the difference between being employees and workers so you stay on the right side of the law.
Are your new recruits employees?
To work out if your staff are employees and not temp workers, check whether they meet the majority of the below criteria:
- They're required to work regularly unless they're on leave.
- They're required to do a minimum number of hours in return for pay.
- A manager or supervisor is responsible for their workload, and advises on deadlines, protocol, etc.
- They can’t send someone else to do their work.
- The business deducts tax and National Insurance contributions from their wages.
- They get paid holiday, and are entitled to contractual or Statutory Sick Pay, and maternity or paternity pay.
- They can join the business’ pension scheme.
- The business’ disciplinary and grievance procedures apply to them.
- They work at the business’ premises or at an address specified by the business.
- Their contract sets out redundancy procedures.
- Your business provides the materials, tools and equipment they require for work.
- They only work for the business or if they do have another job, it’s completely different from their work for the business.
- Their contract, statement of terms and conditions or offer letter (which can be described as an ‘employment contract’) uses terms like ‘employer’ and ‘employee’.
It's a simple as ticking the boxes. If your role temporary staff fulfil the majority of the above list, they're an employee of the company. However, if they tick very few of the above the staff may be classed as a 'worker' or as self-employed.
Or are they workers?
A 'worker' will typically carry out similar duties as an employee, but with fewer rights. They'll have a contract or arrangement to carry out work for a reward. This contract can be written or spoken, fixed-term, temporary or zero hours. If they're promised a full-time contract or future work, that will be viewed as as reward.
Workers are obliged to go to work (even if they don’t want to) and will remain employed for as long as there is available work. If the contract is fixed-term they'll be provided with work up until the end-date, however on a zero-hours contract they'll only be called in when the work is there.
Workers receive certain employment rights but these are limited. They'll be entitled to receive National Minimum Wage, protection from unlawful deduction of your wages, the statutory level of holiday, breaks and a 48-hour limit to the working week (if there's a need to work more than this, there must be an opt-out option). You're also afforded protection from discrimination and for whistleblowing.
Given the different rights afforded to an employee and not a worker, it's vital you understand your role when taking on any temporary work over the festive season. More often than not, roles offered during the Christmas season will be temporary or zero-hours, making your temps workers. However, this doesn't mean you can't eventually make the staff employees. It's key, therefore, to be clear about your staff's roles and status in the eyes of both you – as the employer and the law.
Source of criteria for employee: https://www.gov.uk/employment-status/employee.