Posts Tagged ‘mutuality of obligation’

Employing Casual Workers

Employing Casual Workers

Whether you are a small business or a large corporate organisation there may be occasions when you need to engage casual workers to undertake a particular one off task or to help out on an occasional basis when work loads are at a peak.

When a business anticipates or experiences peaks in its business activity it may choose to retain a pool of suitable individuals who may be called upon at varying times to meet the needs of the casual work assignments.

Casual workers are not employees working under a contract of employment, because although the organisation controls when, how and where the work is to be done, there is no mutuality of obligation. The organisation is not obliged to provide the worker with work, and the worker is free, without penalty, to accept or reject an offer of work made to him or her by the organisation.

There is no continuity of service for the individual within the organisation between the termination of one assignment and the commencement of the next assignment. If an individual accepts an assignment, their period of continuous employment will begin on the date on which the assignment starts and will end on the date of termination of the assignment. No employment with a previous employer or under a previous assignment counts towards a period of continuous employment.

Where the organisation offers a casual working assignment, it does not give rise to a presumption that it will offer the individual further assignments, nor that the individual will accept any work that is offered in the future.

Case examples:

O’Kelly and others v Trusthouse Forte plc [1983] IRLR 369: A hotel routinely engaged the services of people (drawn from a pool of workers) to help out as waiters, kitchen porters, etc when clients booked the hotel’s facilities for banquets, wedding receptions, dinner dances and conferences. This arrangement had persisted for many years. Although the workers in question rarely refused an offer of work when made and were rarely without work, the court held that they were not employees. There was one vital missing ingredient: “mutuality of obligation”. The hotel was not obliged to provide them with work, and the workers were not obliged to accept any offer of work made to them.

Vernon v Event Management Catering Ltd EAT/0616/07. The Employment Appeal Tribunal held that a casual worker who, with the exception of a single two-week break to take a holiday, worked every week for more than three years under a series of separate contracts was an employee and had sufficient continuity of service to claim unfair dismissal.

McLeod and others v Hellyer Brothers Limited and Wilson v Boston Deep Sea Fisheries [1987] IRLR 232. The Court of Appeal held that, where successive contracts are entered into between an employer and a worker covering a substantial period of time, it may be possible to infer the existence of a “global” contract of employment – an overriding arrangement governing the entire working relationship – from the parties’ conduct. By this means, workers may establish the necessary “employee” status to qualify for particular statutory employment rights.

Employers need to exercise care to ensure that:

  • assignments are not too lengthy,  preferably they should last for a defined period or cover a  recognised assignment need, for example to cater for a specific event;
  • there is a sufficient gap between assignments (at least more than one week); and
  • the same worker is not offered work on a continual basis.

Otherwise, it could lead to a presumption that an individual is an employee with continuous service from the start date of the first assignment.

For advice and guidance on employing casual workers call HR Management Support on  023 9226 6586 or use our contact form.

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