With the Christmas season almost upon us, many companies are preparing for their busiest time of year and employing seasonal staff to meet an increase in demand.Following Amazon’s phenomenal 2013 Christmas takings of £13 billion, the company has announced plans to hire 13,000 extra people to work in its distribution and customer services centres over the coming festive period.
Temporary Christmas employees are a typical example of fixed-term employees as the end of their employment is determined by an objective condition i.e. reaching a specific date.
It is important that employers working in industries which will see an increase in seasonal workers are aware of the statutory rights that these employees have. The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 grants protection to seasonal employees and stipulates that they should not be excluded from any contractual benefits and facilities offered to permanent staff.
Fixed-term employees should not be treated less favourably than their comparable permanent employees by reason of their fixed-term status, unless the employer is able to objectively justify the different treatment.
In basic terms, a fixed-term employee has the right not to be treated less favourably than a comparable permanent employee:
• As regards to the terms of their contract; or
• By being subjected to any other detriment by any act, or deliberate failure to act, of their employer. (“any other detriment” is widely construed and includes dismissal, bullying and harassment.)
The Regulations emphasise this right in particular in relation to:
• Any period of service qualification relating to any particular condition of service;
• The opportunity to receive training; and
• The opportunity to secure any permanent position in the establishment.
In the case of Whiffen v Milham Ford Girls’ School the Court of Appeal added that fixed-term employees should not be subjected to disadvantages which are not applied to permanent employees; for example, a fixed-term employee being selected for redundancy on the basis of their fixed-term status.
With this in mind, companies like Amazon must take care not to apply any disadvantageous conditions to their fixed-term employees, or hinder their chances of obtaining one of the upcoming permanent positions within the company. ECJ case law suggests that this protection also extends to permanent employees who have previously been on fixed-term contracts to ensure that they are not treated less favourably because of their former status as a fixed-term employee.
As well as Amazon, the Royal Mail has also announced plans to hire temporary Christmas staff. The 19,000 fixed-term employees will work from the middle of November through to early January working shifts which span 24 hours a day to keep on top of the Christmas demand. Care must be taken when setting such working hours to ensure that the Fixed-term Working Regulations are complied with, as less favourable treatment may also arise where employers impose additional conditions on their fixed-term employees which they do not impose on their permanent staff, such as requiring fixed-term employees to commence work at an earlier time than permanent staff performing the same role.
As employers across the country prepare for a productive festive season it is important that they remain alive to the obligations they owe their workforce and remember that their fixed-term employees do not necessarily represent less of a risk than their ‘ordinary’ employees.
Other blogs of interest: