When Does A Casual Worker Gain A Contract Of Employment

Casual workers often fall outside the margins of employment protection due to the nature of their work. Whilst they enjoy flexibility as to when they work, the periods of unemployment breaks up their continuity of employment so that they are unable to bring claims for unfair dismissal in an employment tribunal.

On the other hand, the employer benefits from the absence of some legal obligations. They are unlikely to pay for holidays and sickness absence but have a work force at their beck and call to cover variations in workload.

However there are occasions when the employment is so regular and habitual that the employee can be treated as having a contract of employment with the accompanying benefits.

A judgment on 22nd May 2008 by the Employment Appeal Tribunal (EAT) involved a Plymouth printing company on whether or not there is an over arching contract covering the period when a person is not working. If there are continuing obligations between the employer and the employee then the answer is yes, in which case employment protection applies.

Mrs Haggarty had worked for St Ives Plymouth Ltd as a casual worker for nearly 9 years when she fell out with her employer, resigned and started a claim for constructive (unfair) dismissal.

As a member of a bank of casuals she worked regular shifts alongside permanent employees as and when needed. The casual workers were free to decline shifts if they wanted to without any detriment and would still remain on the bank of workers.

Mrs Haggerty was not paid for sickness absence or holidays but, apart from that, she informed St Ives if she was likely to be unavailable for work so that they could plan accordingly.

The tribunal looked carefully at previous cases decided by the higher Courts. The pattern in the past was that, if the worker was entitled to refuse to do a shift and the employer was not obliged to provide work on a constant basis, there was no legal obligation between the parties and therefore no contract. The fact that Mrs Haggerty expected to be given work and St Ives expected her to accept work was a pattern of behaviour which had established itself over a long period of time. The Employment Tribunal therefore decided that Mrs. Haggerty had a contract of employment (although not in writing) and was entitled to bring her claim for unfair dismissal. It based its decision on the every day facts of the case.

St Ive’s appealed against this decision.

When the case reached the Employment Appeal Tribunal it upheld the Employment Tribunal’s original decision . They found the Employment Tribunal was entitled to make a finding of fact which should not be interfered with unless it had got the law wrong. Despite the fact that the decision was entirely different to previous cases the EAT decided in favour of Mrs Haggerty, the worker. 

For further information or advice, contact Caroline Mitchell

Published 02/06/2008. The author of this article is Caroline Mitchell