Christmas Temps; What Are Their Rights?

Peninsula Team

November 04 2009

It is the time of year now when many companies start looking at employing temporary staff to cover the increased demand over the Christmas period. The temptation for many companies is to think that these employees don’t have any employment rights or protection but this is simply not the case.

Essentially, all employees with the same length of service, whether temporary or permanent, have the same statutory rights. The non-permanent nature of the employment does not change their fundamental employment rights.

In addition, “fixed-term†employees have a specific statutory right not to be treated less favourably than comparable permanent employees unless such treatment can be objectively justified. They also have the right to be informed of any available vacancies at your establishment.

All employees are entitled to receive a written statement of their main terms and conditions within two months of starting work if their employment lasts for longer than one month. This applies even if they have left within those two months. They have the right to written pay slips and they will accrue annual leave from day one of their employment.

It is important to be consistent with how you treat all your staff so if they break the rules they should be treated in the same way as comparable permanent staff members.

It is important, therefore, when recruiting to make sure that you set out the relevant terms of the role. Be clear that it is a non-permanent role to cover the Christmas period and set out the period for which it is expected to continue or, if it is for a fixed-term, the date when it is to end. If you choose to employ some-one on a fixed-term contract, it is wise to include provision for early termination by notice. You should use a fair recruitment process to minimise the risk of any potential discrimination claims in relation to those that you have turned down.

Give yourself plenty of time to carry out a proper recruitment process, including checking that that they have the right to work in the UK and taking up references. It is all to easy to think that because someone is not going to be with you for very long that you will not need to be as rigorous in checking applications as you would be otherwise. This can be a dangerous and potentially costly mistake. Take up references so that you can identify if these individuals are suitable for employment with your company. Additionally, if you have a tendency to offer permanent roles to some of your temporary staff you should be aware that taking up references at this time is often missed and it will be hard to explain why you felt they were good enough to work for you on a temporary basis but not permanently.

If you do wish to make any of these individuals permanent employees following the Christmas period you should make sure that you are clear and transparent in your selection methods so that you don’t leave yourself open to any tribunal claims. You will probably need to amend their written statements of their main terms and conditions or issue new ones (making sure that you acknowledge that their previous service with you counts as continuous where appropriate). Make sure you give proper notice of termination and payment in lieu of accrued untaken annual leave to any temporary staff whose employment you will not be continuing.

It is important to note that the above principles apply where you are directly employing these individuals. Different considerations apply if you plan to use temporary agency workers via an employment business.

Remember:

  1. Give yourself enough time to recruit properly.
  2. Issue contracts of employment.
  3. Follow fair selection procedures if making anyone permanent.
  4. Give proper notice if you are ending a temporary contract.

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