Trend towards Gig Economy
With increasing commentary on the trend towards a “Gig Economy” where temporary positions are commonplace, it is worth looking at some of the legal issues surrounding the area of temporary, part-time and casual working arrangements.
While temporary, part-time or casual working arrangements can be very attractive for employers who need to fill a temporary or small gap in their work force, there can be costly consequences for failing to address the legal formalities.
Temporary working arrangements
Where an employer opts to give an employee a temporary contract it is very important to get the paper work right. In the absence of the requisite paper work the default position may be that the employee is employed pursuant to a contract of indefinite duration (essentially a permanent contract). In those circumstances once the employee reaches a year’s service he or she will be entitled to the full protection of the Unfair Dismissals Acts 1977-2015 and cannot be dismissed other than in accordance with that legislation.
The area of fixed-term / temporary / specific-purpose employment relationships is governed by the Protection of Employees (Fixed Term Workers) Acts 2003 (the 2003 Act) which provides that temporary employees cannot be treated less favourably than comparable permanent employees by reason only of their fixed-term status.
The 2003 Act also provides that generally speaking persons employed pursuant to successive temporary contracts will automatically become entitled to a contract of indefinite duration after four years unless the employer can establish objectively justifiable grounds for renewing the contract on a fixed-term basis only. It is important to note that for an employer to establish such grounds is no easy task.
Part-time working arrangements
Coupled with the rules on temporary working there is a whole other body of legislation governing part-time working, namely the Protection of Employees (Part-Time Work) Act, 2001 (the 2001 Act). That 2001 Act provides that part-time workers cannot be treated less favourably than comparable full-time workers by reason only of their part-time status. Generally, part-time workers must enjoy the same benefits as comparable full-time workers, however, where those benefits depend on the hours worked they can usually be calculated on a proportionate (pro rata) basis.
Lesser protections for Casual Workers
Notwithstanding the protections afforded to temporary and part-time working arrangements, section 11 of the 2001 Act provides that a “casual worker” can be treated less favourably than a comparable full-time worker where there are objective grounds justifying the less favourable treatment.
The 2001 Act also states that a ground which might not be accepted as an objective ground for less favourable treatment of a part-time worker could possibly be accepted as a ground for less favourable treatment of a “casual worker” thereby denoting a lesser level of protection for “casual workers” when compared to other part-time workers.
This then begs the question - what is a “casual worker”?
Definition of Casual Worker
For the purpose of the 2001 Act a part-time employee shall, at a particular time, be regarded as working on a “casual” basis if at that time he or she has been in continuous service of the employer for a period of less than 13 weeks and that period of service and any previous period of service by him or her with the employer are not of such a nature as could reasonably be regarded as regular or seasonal employment.
There are also scenarios where persons might be regarded as “casual workers” based on collective agreements to that effect.
It is also worth noting that lesser protections apply to casual workers in terms of the current rules concerning zero hour contracts. Section 18 of The Organisation of Working Time Act 1997 provides a certain level of protection to employees on zero hour contracts in that they are entitled to a minimum payments even if they are not required to work their contractual hours. However, casual workers are usually excluded from this protection and arguably the protection doesn’t apply where there is no requirement to take up the work if it is offered.
Casual workers still have rights
However, while there may be certain areas where causal workers have lower employment law protections, the general requirement to provide all employees with a written statement containing certain basic terms and conditions of employment within two months of commenceing employment applies to all employees including casual workers.
There is also the consideration that ad hoc working arrangements which an employer may think of as casual but which reoccur year-on-year could after four years lead to employees accruing more permanent rights pursuant to the 2003 Act such that the employee becomes entitled to that same period of work each year thereafter.
Lessons for Employers
While temporary, part-time or casual working arrangements can appear a practical and quick fix to an urgent temporary business need, except with certain limited exceptions, there are employment law protections that will ordinarily apply immediately upon commencement of employment. The longer an employee remains in ad hoc employment the more entitlements that are likely to accrue. Therefore, whatever the arrangement, it is recommended that the employer should ensure to provide each new employee with a good employment contract, which is specifically designed to deal with the particular scenario in question. It is worth taking legal advice at the outset of the employment relationship to get the wording of the contract right rather than continuing on an ad hoc basis until unforeseen employment law issues arise which could in some cases have significant costs consequences for the employer.
Another topical issue in the face of the trend towards a “Gig Economy” is engaging workers as contractors rather than employees, this brings into questions employment rights and the "gig" economy.
A separate but related topic is that of the changes to employment law working arrangements proposed by the Employment (Miscellaneous Provisions) Bill, 2017.