The nature of agricultural work is such that additional pairs of hands are often needed at certain times of the year; whether to pick daffodils in the spring, or to collect the harvest at the end of the summer.
Employers have various different options open to them in terms of how they engage such seasonal workers. They may choose to employ individuals under fixed-term contracts for a month or two, or perhaps on a flexible zero hours contract throughout the year.
These employment arrangements come with their own particular considerations. So what should employers be aware of when looking to engage seasonal workers?
Employee or worker
Firstly, it is important to distinguish the employment status of the individuals you engage - are they "employees" or "workers"?
"Employees" are those who work for you under the terms of an employment contract, whether this contract is written or oral.
If the individuals you engage do not have employment contracts, but do personally perform work for you under another type of contract (whether written or oral) then they are "workers". Those falling into this category may include freelance workers, casual workers, workers engaged under zero hours contracts and agency workers, but not anyone who is self-employed.
The distinction is important, because employees enjoy a greater level of legal protection than workers.
Fixed-term contracts can be very useful to employers seeking some extra help for a set period of time. However, if the individual is an "employee", then you should be aware of the following legal requirements:
- All fixed-term employees are entitled to be treated no less favourably than permanent employees, whether in relation to pay, benefits or any other opportunities. Should you need to make some of your employees redundant for any reason therefore, you cannot simply choose to get rid of the fixed-term employees, as this would be considered less favourable treatment.
- Just as with those engaged under permanent contracts of employment, you must provide a written statement to all fixed-term employees working for more than 1 month, which outlines the terms and conditions of their employment.
- Expiry of a fixed-term contract is considered to be a dismissal. If the contract is for 2 years or more the employee could bring a claim for unfair dismissal if there is no fair reason for the dismissal, or if you do not use a fair procedure in dismissing them.
Although this may seem of little concern because it is unlikely that seasonal workers will be engaged for more than a month or two, if you employ the same individual under a series of fixed-term contracts then they may be deemed to have continuous service lasting from the start of the first fixed-term contract. Should this continuous service amount to 2 years or more, the same rules will apply as if there had been one fixed-term contract across the whole period.
It can be useful to engage part-time workers, whether fixed-term or permanent, to provide extra help at the busiest times of the year, and it is common for part-time agricultural workers to enjoy flexible arrangements which allow a variation of hours over different days.
Employers should note, however, that part-time employees and workers have the right not to be treated less favourably than their full-time equivalents. You should therefore ensure that any part-time workers are given pro rata entitlement to pay, holiday and other benefits, in line with your full-time workers.
Zero hours contracts
Zero hours contracts are another popular way to have a flexible means of engaging extra help for such periods and hours as the employer chooses. Most people working under a zero hours contract will be considered workers rather than employees (because there is no obligation on the employer to provide work or for the worker to do it), but it is important to remember that workers still have a number of rights, including the right to receive national minimum wage, statutory rest breaks and paid annual leave, amongst other things.
Exclusivity clauses are banned in zero hours contracts, so if you are engaging workers on this type of arrangement, you should be aware that you will not be able to prevent or dismiss these workers for also finding work elsewhere.
If you would like more detailed advice on the employment of seasonal workers, please get in touch with Chloe Ricciardi.