Temporary harvest workers: handle with care – part two
21 February 2024
In part two of this employment article, Eleanor Bullen-Bell from our Employment Team further addresses some of the key issues to consider when employing seasonal workers with a focus this time on employment status and holiday entitlement.
Employment status
There are three categories of individuals providing their services in the UK labour market: employees, workers, and self-employed independent contractors. The legal rights and protections afforded to seasonal workers will be determined by their employment status, demonstrating the importance of considering the exact nature of the working relationship despite its assumed informality.
Employees enjoy the highest level of legal rights and protections, in particular, the right not to be unfairly dismissed. Worker status sits in between employees and self-employed contractors as a hybrid status. Workers benefit from some core protections, including working time rights such as rest breaks and paid holiday, whereas only very limited protections extend to self-employed individuals, meaning fewer obligations rest on the employer.
Somewhat confusingly, the legal tests to determine employment status differ depending on what employment right is being asserted and the relevant piece of legislation. The courts have developed a number of tests to supplement the legal definitions and to aid employers in practice.
A tribunal generally focuses on the degree of control between the parties, whether there is a requirement for personal service and the ‘mutuality of obligation’ (in short, the obligation to pay remuneration in exchange for the individual performing work). However, there are a range of other considerations, illustrating that this is not always a straightforward exercise.
When determining employment status, a tribunal will start by looking at the terms of the contractual documentation (to the extent this exists) before going on to assess the nature of the relationship in reality. The label applied to the relationship will not be determinative of the individual’s employment status and a tribunal will look behind the wording of any agreement at the overall picture. Establishing the employment status of seasonal workers can give rise to difficulties as it depends on the particular factual circumstances, and therefore, there is a certain degree of unpredictability. Case law has also shown that there is often a fine line when distinguishing between each status.
The flexibility of temporary working arrangements can be beneficial for both parties, but it is vital to consider the legal practicalities as an individual’s employment status is fundamental to the determination of the parties’ rights, duties, and obligations.
Holiday
Employees and workers are also protected by the Working Time Regulations 1998 (the Regulations), which specify certain entitlements in relation to maximum working hours, rest breaks, and paid holiday. Under the Regulations, all workers are entitled to a minimum of 5.6 weeks of paid annual leave (which equates to 28 days for a full-time worker, inclusive of bank holidays). Holiday entitlement and holiday pay for seasonal workers with irregular hours can raise several complexities in practice. Employers of seasonal workers should keep accurate records of hours worked for the purposes of calculating a worker’s holiday entitlement and pay.
The Government has recently taken steps to clarify the law relating to the calculation of statutory holiday entitlement for casual and part-year workers following the controversy caused by the Supreme Court’s decision in Harpur Trust v Brazel in 2022. Holiday entitlement for casual and part-year workers will now accrue at a rate of 12.07% multiplied by the number of hours worked in the preceding pay period. A worker taking maternity or family-related leave, or a period of sickness absence should have their leave calculated based on an average calculated over a 52-week period. The amendments also legitimatise the payment of rolled-up holiday pay, which enables employers to include holiday pay in casual and part-year workers’ pay, provided certain conditions are met and it is itemised on workers’ payslips. The changes to the Regulations took effect from 1 January 2024 and will apply to leave years starting on or after 6 April 2024. The Government has also issued helpful guidance with worked examples of holiday pay calculations for irregular hours workers.
If you require any further information on the matters covered in this article, please contact Eleanor Bullen-Bell or another member of Birketts’ Viticulture Team.
If you missed part one of this article, you can read it here.
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Eleanor Bullen-Bell
Services
Sectors
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at February 2024.