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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 worker' 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 a casual worker, 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 worker' 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

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 casual contracts, 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 has 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.