It is vital that employers are familiar with employment rights for all categories of workers as flexible working becomes more prevalent, says Karen Harvie
A recent report from the Resolution Foundation think tank found that a significant number of workers do not get paid holidays or receive a payslip.
The report revealed that workers over the age of 65 were most likely to lose out on paid holidays despite being legally entitled to 28 days a year or pro rata as appropriate.
Ultimately, the findings appeared to suggest illegal labour practices in the UK were fairly common, and were in many cases being swept under the carpet.
All extremely disappointing, you might say, and you’d be right, especially given the level of employment law in place to ensure the proper rights of workers.
However, perhaps one of the most interesting, but also least understood, areas referred to in the report was that of something called “atypical contracts”.
Atypical contracts, and the rules that apply to them are probably not widely understood, either by workers or, in some cases, employers themselves.
This is, of course, an issue for workers but also for the businesses that employ or contract them, many of whom tend to be small or medium sized businesses who may not have access to significant legal or HR resources. The report indicated that some businesses were making large use of atypical employment contracts where the abuse of the rules was most prevalent.
Atypical work is 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 employment of indefinite length.
As a business, the first point to establish when considering what rights and protections an atypical worker might have is whether they are either an employee working under a contract of service, a worker, or self-employed.
Employees do, of course, have the greatest level of protection, but it is vital that employers are fully conversant with the protections afforded to other categories of workers, particularly as forms of working have become more flexible in recent years.
When it comes to agency workers, whether they are employees of the employment business or the client for whom they perform work, they too have rights, as do casual workers, a more familiar sight these days, who supply their labour or services in irregular or informal working arrangements.
This could be “on call” or “zero hours”. In addition, fixed term workers have the same rights not to be unfairly dismissed. These categories are not exhaustive and we haven’t yet touched on those who are secondees, or volunteers.
Labour market violations are, unfortunately, more regular than any of us would like, whether they are intentional or not. But the result is that millions of workers are missing out on basic entitlements.
The effect on a business could be damaging financially but that is not the only harm. Reputation is now everything in business, and developing a name for not treating workers fairly will, of course, make it significantly harder to recruit the best talent.
In addition, once your workers do discover that they have been missing out on benefits they are entitled to, they are unlikely to be as productive as they otherwise might have been, and there is a risk of a large and/or multiple claims against the employer
Ultimately, regardless of how you label the category of worker, a court or tribunal will look at what happens in practice.
It is critical that businesses, of whatever size, ensure they are complying with the rules. The consequences of not doing so can be severe. And ignorance of the regulations is no defence.
Karen Harvie is Senior Associate, Employment Law, Aberdein Considine
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