ATYPICAL WORKERS Overview Agency Workers Casual Workers FixedTerm

ATYPICAL WORKERS

Overview • Agency Workers • Casual Workers • Fixed-Term Workers • Apprentices • Volunteers, interns and work experience • Consultants and Self-employed Contractors • Flexible contractor • Flexible working • Homeworkers • Office holders • Part-time workers

Atypical Workers • “any pattern of work which does not fit the classic or traditional concept of an employee working full-time for a single employer under a contract of service of indefinite length”

Agency Workers • An individual engaged by an employment business to perform work for one of the employment business’s clients • Employment Agencies Act 1973 • Conduct of Employment Agencies and Employment Business Regulations 2003 • The employment business sends the agency worker to the client but the worker does not enter any separate contractual arrangement directly with the client • The employment business pays the agency worker • Tribunals have to decide whether a contract of service exists in the context of a tripartite relationship

Agency Workers – employees? • • Agency workers not employed by anyone? Employment business as employer? Client as employer? Brook Street Bureau (UK) Limited v Dacas [2004] IRLR 358 • James v Greenwich Council UKEAT 0006/06/1812

Casual Workers • • Casual worker has no legal meaning Zero hours contracts Bank staff Umbrella contract

Zero hours workers – Key Issues • Different treatment between zero-hours workers and their full-time colleagues justifiable? • Employee or worker? • Continuity of Service • Holidays • Discrimination • Zero-hour contracts Bill?

Fixed-Term Workers • Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 • Terminates on the expiry of a fixed-term; on the completion of a particular task; on the occurrence or non-occurrence of any specific event other than the attainment by the employee of a normal retirement age • Parity of treatment between fixed-term employees and permanent employees

Fixed-Term Workers - Mitigation of risk of discrimination claims • Audit contract terms and benefits offered to fixed-term employees • Make any necessary changes so that fixed -term employees are offered the same terms • Keep records of the steps taken to compare and calculate differences in benefits

Fixed-Term workers – legal issues on termination • Reason for non-renewal – s. 98 ERA 1996 • Establish which reasons in good time and follow fair procedure • Is notice required? • Extending the contract – what are the terms? • Acas Code does not apply • Employers should not ignore procedural issues when declining to renew a fixed-term contract

Apprentices – the Modern Apprenticeship Scheme • Apprenticeships involve on-the-job training for the apprentice over a fixed term, during which the apprentice also undertakes work for their employer • “An enthusiastic and trained workforce underpins Scotland's ambition for economic success. Modern Apprenticeships support this goal by providing individuals with the opportunity to secure industry recognised qualifications while earning a wage. ” • http: //www. skillsdevelopmentscotland. co. uk/our-services/modern-apprenticeships/

Modern Apprenticeships – Practical Aspects • Employment status • “Each Participant must be employed by an employer: • for whom he or she is working as an employee to consolidate the skills acquired during his or her MA Programme; and • by whom the Participant is directly managed whilst performing his or her apprenticeship tasks on a daily basis. • Participants following a Modern Apprenticeship framework will be subject to the same policies and procedures as other employees of the organisation with which they are employed and the Provider must procure that each Participant is informed by his or her employer of their rights as an employee, including those relating to the national minimum wage. • For the avoidance of doubt, a Participant cannot be self-employed. ” • Skills Development Scotland ‘MA Public Rules for Public Funding of Modern Apprenticeships 2013/2014’

Modern Apprenticeship – Public Funding 2013/14 • Skills Development Scotland administers the Scottish Government’s public funding contribution toward the cost of training for employees that employers wish to support through an approved Modern Apprenticeship framework • Maximising jobs with training opportunities for eligible young people by providing a contribution to meet employer demand for 16 -24 year olds • Maximising opportunities for the wider availability of higher level MAs • For aged 25 or over supporting the Scottish Government’s key sectors and other frameworks such as construction • Skills Development Scotland ‘MA Public Rules for Public Funding of Modern Apprenticeships 2013/2014’

Volunteers, interns and work experience • Legal status of volunteers and interns? • Expenses really payment for work – Migrant Advisory Service v Chaudri UKEAT/1400/97 • Volunteer agreement was a binding contract – Murray v Newham CAB UKEAT/1096/99 • Expectations are not obligations – South East Sheffield CAB v Grayson [2004] IRLR 353

Volunteers, interns and work experience • Required standards did not create mutuality of obligation – Melhuish v Redbridge CAB [2005] IRLR 419 • Volunteer not protected under discrimination law – X v Mid Sussex CAB & Another [2012] UKSC 59 • Paid volunteer had no contract personally to perform work – Breakell v West Midlands Reserve Forces and Cadets Association UKEAT/0372/10

Volunteers, interns and work experience – how to avoid pitfalls • Avoid making payments that could be construed as wages • Remove or minimise perks • Reduce obligations on the part of the volunteer • Avoid using language that makes the arrangement sound contractual • Treat volunteers fairly

Consultants and Self-Employed Contractors • No legal definition of ‘consultant’ • Self-employed independent contractor who is engaged to provide specific expertise for a particular project • Not an ‘employee’ or ‘worker’ – s. 230(1) and (3) ERA 1996 • May be in ‘employment’ • May be a worker for the purposes of ERA 1996, WTR 1998 and NMWA 1998

Consultants and Self-Employed Contractors – Employee or consultant? • Ready Mixed Concrete (South East) Ltd v the Minister of Pensions and National Insurance [1968] 2 QB 497 – Four stage test • Mutuality of obligation? • Personal service? • Under control of the client company? • Any other terms of the agreement which point to employment status?

Flexible Working • Right to request flexible working – Employment Act 2002 • The amendment of ERA 1996 to include ss. 80 F-I • The Flexible Working (Procedural Requirements) Regulations • The Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 • Employees with 26 continuous weeks’ employment who have caring responsibilities • Government has confirmed its intention to extend the right to request to flexible working to all employees with 26 continuous weeks’ notice

Flexible Working – Right to Request • • Limited in nature A right to request to work flexibly A statutory request procedure An obligation on the employer to consider the request properly • A limited number of grounds on which the employer can refuse the request • It does not create a right to work flexibly or part -time

Flexible Working – Right to Request Procedure • Employee could request a change of hours/times they work/location • Employee submits a written application • Employee can withdraw a request; no further right to request within 12 months • Employer must arrange to meet within 28 days • Within 14 days employer must either agree to request with start date or provide grounds of rejection with appeal procedure • Appeal must be within 14 days of rejection • Appeal meeting must be arranged within 14 days • Within 14 days after the appeal meeting the employer must deliver the appeal decision

Flexible Working – grounds of rejection • • Eight grounds for rejecting a request The burden of additional costs Detrimental effect on ability to meet customer demand Inability to re-organise work among existing staff Inability to recruit additional staff Detrimental impact on quality Detrimental impact on performance Insufficiency of work during the periods the employee proposes to work • Planned structural changes • Although this legislation has limited remedies, employers should be mindful of sex discrimination and constructive dismissal claims as a result of refusals

Homeworkers • No statutory definition • Majority now managerial, professional, technical or skilled workers • Tailoring standard employment contract clauses to encompass homeworking • Taking appropriate measures to protect confidential information and personal data • Reviewing health and safety implications • Deciding whether special equipment should be provided

Homeworkers • Special planning or insurance? • What arrangements should be made for the management and supervision of homeworkers • Identifying the tax consequences • Flexible working • Indirect sex discrimination

Office Holders • Not considered to be employees traditionally • Some may also have a contract of employment • Earnings or honorarium? • Prison Officers Association and Others v Gough and another UKEAT/0409/09 • Johnson v Ryan [2000] ICR 236

Categories of Office Holder • Those whose rights and duties are defined by the office they hold and not by contract • Those who have the title of office holder, but who are really employees with a contract of service • Those who are both office holders and employees • Full-time tribunal judicial office holders – workers for the purposes of Article 157 TFEU • Appointment described as ‘office’ – did not mean that the holder of the office was not an employee

Part-time Workers • Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 • Designed to ensure part-time workers not treated less favourably than full-time workers • “a person who is paid wholly or in part by reference to the time they work, and who is not identifiable as a full-time worker having regard to the employer's custom and practice in relation to workers employed under the same type of contract” • “a person who is paid wholly or in part by reference to the time they work, and who is identifiable as a full-time worker having regard to the employer's custom and practice” • Regulations apply to all workers, not just employees

Part-time Workers • They apply equally to men and women • There is no qualifying period or upper age limit for bringing a claim • There is no exemption for small businesses • Right not to be treated less favourably as regards the terms of their contract or by being subjected to any other detriment by any act, or deliberate failure to act, by their employer • Objective justification – legitimate objective which is necessary and appropriate • Sex discrimination and equal pay claims

Questions?

Marie Macdonald Partner mem@millersamuel. co. uk 0141 227 6032