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Casual workers

Overview
Klauber, Jane - Russell-Cooke LLP
Overview
The use of atypical working arrangements, particularly the use of casual workers, has become increasingly popular with employers. Despite this popularity, the meaning of the term 'casual workers' is not defined in employment law and in practice there are wide-ranging views about what the term means.
 
To add to the confusion, employers often use the term 'casual' with both the terms 'employee' and 'worker'. This can create confusion about the legal status of the individual and the legal rights and protections that are available to them. Where the status is uncertain, this also creates difficulty in understanding the obligations of the employer.
 
There is no absolute definition of 'casual workers', or a universal model of casual working. The status of individual workers and the rights and protections available to them in law will be determined by the nature of the working relationship that exists with the employer.

Key points

  • The term 'casual workers' is not defined in employment law
  • The rights and protections available to a casual worker depends on the legal status of the individual in question
  • Casual workers could potentially be employees, workers or self-employed
  • The status of the casual worker may be determined by the contractual documentation
  • Where the contract does not reflect the reality of the arrangement, consideration should also be given to how the arrangement operates in practice
  • A key consideration in determining the status of a casual worker will be whether or not mutuality of obligation exists in the working relationship
  • Where there is no mutuality of obligation, a casual worker will not be an employee.

Recent developments

Consultation evaluated new rights for all flexible workers

A government consultation examined whether new laws should be introduced to protect flexible workers, including casual workers, and prevent 'one-sided flexibility'. Specifically, it asked for views from flexible workers who have experienced the below practices in organisations. The consultation considered:

  • introducing compensation for workers who have shifts cancelled at short notice
  • providing workers with a reasonable period of notice of assigned shifts
  • protecting workers against detriments if they decline shifts which are offered on short notice.

The consultation closed in October 2019. Likely due to the 2020 coronavirus pandemic, the government has not yet announced how it intends to respond.

 

New right for all workers to request a more stable contract

An independent review into modern ways of working, and the use of flexible ways of working such as employing casual workers, was carried out by Matthew Taylor and resulted in the Good Work Review which was published in July 2017.

Following a consultation on this matter, the government’s ‘Good Work Plan’ released in December 2018 confirmed that legislation will be introduced to create a new right for all workers to request a more predictable and stable contract. The worker can decide whether they wish to make a request for a fixed working pattern once they reach 26 weeks’ continuous service with the organisation.

It has not yet been confirmed when this new right will come into force.