What is a "casual" worker?

Frugalista

What constitutes a casual worker as opposed to a part-time worker?

I work 3 mornings a week (total 12 hours) in a boarding kennels. I get paid cash in hand - the job was originally for approx 5 months but I have now been there 4½ years.

After 6 months they said they would pay me holiday pay (12 days a year) and they did with no problems - until now :mad:. Last year I only took 7 days and they said I could carry the remaining 5 days over to this year.

Today I went to book a day off (from last years allocation) and they said they aren't going to give me holidays any more as A: they can't afford it any more and B: I am "casual" staff. I said I was classed as part time as I had done the same job/days for over 4 years. Who is correct and do I have any rights to paid holidays? Thanks in advance.

Newbiesw

As far as I know a contract does not exist between a casual and an employer, they are employed an a day-to-day basis, as and when they are required and when the work arises, with no guarantee of work.
A part-time worker may have a contract with their employer similar to a full-time, with all the rights involved but contracted to do fewer hours.
Casuals are casuals because it is usually a short term employment, but when the casual has been there for years, certain Statutory rights take effect.
You have a right to holiday pay as a casual from the first day of your employment, but even if you had a contract, you do not have a "right" to carry holidays, but after being told you could, it's a bloody poor show that they've just changed their minds.

Newbiesw

ableandy

Q What is a casual worker?

A The phrase 'casual worker' is often used to describe workers who are not part of the permanent workforce, but who supply services on an irregular or flexible basis, often to meet a fluctuating demand for work. Their legal rights will depend on their legal status: are they employed, self-employed and/or a worker?

Q What's the difference between employee, self-employed and worker
status?

A Employees benefit from a range of statutory employment rights including the right not to be unfairly dismissed, the right to receive a statutory redundancy payment, the right to equal pay and the right not be discriminated against.

Individuals who provide services but are genuinely self-employed do not enjoy such statutory employment rights. A company's obligations to someone who is self-employed will be largely governed by the contractual terms that have been agreed either orally or in writing.

Also, a further category of worker was introduced into English law as a result of European legislation including the working time regulations, the National Minimum Wage Act and the Part-time Workers (Prevention of Less Favourable Treatment) Regulations. This category sits between an employee and someone who is self-employed. And, while workers do not enjoy all the rights of employees, they enjoy a set of basic ones.

Q What exactly is a worker?

A A worker is anyone who works under:

• A contract of employment (who will also be an employee) or
• Any other contract, whether express or implied, and, if it is express, whether oral or in writing, whereby an individual undertakes to do or perform personally any work or services for another party, who is not a client or customer of any professional business undertaking carried on by the individual.

What this means is that a worker is someone who has agreed to work personally for an organisation, but who doesn't qualify as an employee - using the test above - and who isn't providing services as a professional commercial business. This will therefore cover freelances, staff provided by an agency and some self-employed contractors.

Q What rights does an employee have that a worker doesn't?

A Unlike workers, employees have protection against unfair dismissal, protection under TUPE, the right to maternity or paternity pay or leave or statutory sick pay. Workers have no right to a statement setting out the key terms of the contract or to statutory minimum notice. Also the statutory grievance and disciplinary/dismissal procedures do not apply.

Q What rights do workers have?

A Workers benefit from several basic rights:

• Protection against certain types of discrimination. Depending on the exact circumstances, this may include sex, race, disability and equal pay legislation
• Rights under the Working Time Regulations, such as paid holiday leave, restrictions on working hours and the right to rest breaks
• Right to the national minimum wage
• Protection for whistle-blowing
• Health and safety protection
• Protection against unlawful wage deductions.

Q How do I tell if someone is an employee?

A The Employment Rights Act 1996 defines an employee as an "individual who has entered into or works under a contract of employment".There is no simple test for determining whether an individual "works under a contract of employment". The court will look at any written contract (if one exists) and the factual reality. There are two core elements that must always be present in a contract of employment:

• There must be a requirement (whether written or implied) for the individual to provide the work personally and
• There must be mutuality of obligation. If an individual is free to choose whether or not to take on work when it is available and an organisation is under no obligation to offer work, then there will be no mutual obligation and the individual will not be an employee.

Q Are there any other factors to determine whether someone is an employee?

A A court will look at: whether the employer is able to control how the work is done whether an individual is fully integrated into the organisation the economic reality of who bears the business risk associated with the individual's activities whether the individual is subject to the company's disciplinary code, and whether the employer deducts Paye and NI from the individual's pay.

Sory for the long reply.

Mudd14

Good post ableandy.

To add casual workers are still entilted to the statutory requirement as an employee. So you are entitled to 5.6 weeks holiday. For casual workers this is normally accrued by the percentage method where you accrue 12.07% of every hour worked as holiday.

Savvy_Sue

Frugalista wrote: »

Today I went to book a day off (from last years allocation) and they said they aren't going to give me holidays any more as A: they can't afford it any more and B: I am "casual" staff. I said I was classed as part time as I had done the same job/days for over 4 years. Who is correct and do I have any rights to paid holidays? Thanks in advance.

If you've been regularly working 2 days a week all this time, you're part-time not casual. Casual is when you do what they ask you, and only what they ask you. But in either case, you're entitled to paid holidays, as others have said.

When you're allowed to carry holidays over to the next holiday year, there's often a limit to how many you CAN bring forward, and you often need to take them within the first 3 months.

Where I work, you can carry forward up to a week's leave, so in your case that would only be 2 days. We'd also expect you to take it by the end of March, or lose it.

However, in your position I would still argue that 'custom and practice' meant I could carry that leave forward ...

Mudd14

If you are entiltledto the statutory minimum of 5.6 weeks you are not allowed to carry these over. All employees must take the minimum amount of holiday per annum to ensure there are enough 'rests'. Only contractural holiday ontop of statutory can be carried forward!

ceridwen

When I did some casual work on a regular basis for an employer - I found that they had to provide their casual workers with the holiday time they would expect. In my own personal case they broke the law by giving me a higher hourly rate and no holiday time - but I knew this and accepted it - for the sake of that higher hourly rate. Obviously I could have challenged them on that if I had preferred to have the holiday instead.

As you've been having the holiday all this time - then I doubt they could take it from you now.

Errrr...there is one point everyone has ommitted to mention though. You "have them over a barrel" as you could easily report them for paying for a job "cash in hand".

Errr....they also "have you over a barrel" though - because YOU are the one who has been doing that "cash in hand" work....:cool:

Mudd14

ceridwen wrote: »

When I did some casual work on a regular basis for an employer - I found that they had to provide their casual workers with the holiday time they would expect. In my own personal case they broke the law by giving me a higher hourly rate and no holiday time -

Just wondered why they broke the law doing this? Rolled up holiday pay is still legal, however since a 2006 ruliong it must be clearly showed as two seperate items, ie basic pay and holiday pay

Frugalista

Thank you all for the replies so far. Just to clarify, the reason that I only took 7 out of my 12 days holiday was that it was never "convenient" for me to have time off. Every time I asked it was "well, we could really do with you in that week" or "we are busy and need you to cover". I wanted to take a break over Christmas (and use up my holiday) but was told that they were fully booked so expected me to be there. As my OH had been made redundant, I complied rather than rock the boat. They said it would be OK to carry it over - in fact it was them who suggested it - but are now denying any conversation about holidays.

They are now saying that "as a small business they can't afford to pay any holiday this year" and I am afraid that I will lose my job if I kick up a fuss .

ceridwen wrote: »

Errrr...there is one point everyone has ommitted to mention though. You "have them over a barrel" as you could easily report them for paying for a job "cash in hand".

Who would I report them to and what rules have they broken by paying cash in hand?

ceridwen wrote: »

Errr....they also "have you over a barrel" though - because YOU are the one who has been doing that "cash in hand" work....:cool:

Why should I not do cash in hand work? I am earning less than a "taxable" amount aren't I? In what way do they "have me over a barrel"?

Thanks in advance .

sammyjo1979

If you've been paid cash in had, you haven't declared any of it I'm guessing so both of you could be in trouble!

With the paying extra on your hourly wage instead of holiday, that isn't uncommon, a few agencies do that too.