Most of the pandemic restrictions that we have seen over the past two summers have now been lifted and the summer holidays are approaching. Against that backdrop, businesses, particularly in the hospitality and tourism sector, may be considering recruiting seasonal staff to deal with an anticipated increase in trade.
When recruiting seasonal staff here are a couple of issues to bear in mind:
- What employment rights do seasonal workers have?
Workers, even when engaged on a causal and/or seasonal basis – i.e. there is no obligation on them to accept work offered to them and no obligation for employer to offer work, - are still entitled to employment rights. These rights are, in summary:
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- The right to be paid National Minimum wage.
- The right to take paid annual leave of 5.6 weeks for a full time worker (pro-rated for part time worker).
- The right to take rest breaks.
- If they qualify, entitlement to be paid Statutory Sick Pay.
It should also be noted, if staff are obliged to accept the work you offer (for example, have to carry out a minimum number of hours each week) and/or you guarantee them a certain number of hours these staff may well be considered to be employees rather than workers. As employees they have additional rights including in relation to family leave, and the right to request flexible working and after two year's service, the right to bring an unfair dismissal claim. Any seasonal staff who were determined to be an employee would be afforded these rights.
Despite an employee only working seasonally, if an employer consistently employs the same individual for seasonal work over a period of 2 years or more, they may be considered to have continuous service for this period, even if there are gaps where they carried out no work for the employer, and satisfy the requirements for an unfair dismissal claim.
Seasonal staff (whether workers or employees) are protected from any act of discrimination just like all your other staff whether these individuals are engaged on seasonal, part-time, full-time and/or fixed terms basis. Staff members are entitled to work without unfavourable treatment in respect of any protected characteristic they may possess – the protected characteristics are: age, gender reassignment, marriage or civil partnership, maternity leave or pregnancy, disability, race, religion or belief and sex.
Employees and workers who are engaged on a part-time basis are also protected from less favourable treatment as a result of their part time status when compared to full time staff, unless you can objectively justify the reason for the unfair treatment. If any of your seasonal staff were able to argue that they were in fact an employee rather than a worker, they would also have protection against unfair treatment in respect of their fixed-term status.
We advise business to consider the issues set out above when engaging seasonal staff and take appropriate legal advice.
