As the effects of the COVID-19 pandemic continue to impact work environments, flexibility in scaling the workforce up or down at short notice has become increasingly important to many businesses.  

A flexible workforce is currently essential for many businesses but may also help into 2021, as, let’s face it, things do not look likely to change, at least in the short term.  

Flexibility could be a factor to help recover and thrive once the COVID-19 pandemic ends. However, flexibility is rarely enabled by employment law and the law around zero-hours contracts, self-employment, personal service companies and agency workers is complex. Businesses seeking flexibility should therefore ensure they are aware of certain employment law issues before making changes to their current arrangements. 

Kerry Curd, a partner in the employment team with WBW Solicitors outlines how to manage the risks and obligations of the different options for a flexible workforce.

Self-employed contractors

Watch out for employment rights contracting with a self-employed individual may seem like a low-risk option, without adding to employment-related overheads and risks. However, even if you and the individual initially agree that they are self-employed, an employment tribunal may see things differently further down the line. An individual’s employment status is not just a matter of what the contract says; their actual employment status can be different if: (1) what happens in practice can be different than what the written contract says; or (2) the arrangement has employment characteristics. Employment status is important because it determines what the rights an individual has. A worker or an employee will have more rights than someone self-employed (including receive paid holiday and rest breaks, and be paid the National Minimum Wage) and employees have even more rights than workers (including protection against unfair dismissal and a right to maternity and paternity pay). 

Determining whether a self-employed contractor could be found to be a worker or employee is not straight forward. Each case will be judged on its own facts and a tribunal or court will consider number of factors to determine employment status. No single factor will be conclusive in all cases so different tribunals will, from time to time, reach different conclusions based on very similar facts.  

The main factors that will be considered will include whether: the individual has to do the work personally or if they can send a substitute instead; the engager control or the right to control that exists over the individual, and the individual is performing services as a person in business on his own account. This is also an active area of litigation, case law is often changing and developing, especially in relation to new working arrangements such as that in the gig economy. 

We can help you review your arrangements with contractors and advise how to reduce the risk that an employment relationship status could be found.

Can I use zero-hours contracts?

Zero-hour contracts can be used for casual working arrangements with no guaranteed working hours, but care should be taken to ensure they are being used genuinely. 

These contracts give employers flexibility and will normally be drafted to only create a worker contract (so as not to give the additional rights that an employee would have). However (and for the reasons stated above), employment status an individual’s employment status is not just a matter of what the contract says. We can help you ensure that contracts and working arrangements do not inadvertently give a zero-hour worker the same rights as for employees. 

Agency workers: be aware of rights and obligations 

An agency can provide your business with agency workers and will do this normally temporarily, which is why an agency worker is often referred to as a temp. The agency will normally employ the agency worker and be responsible for most things, except for the day-to-day management of the agency worker, payment of wages, providing the terms of engagement to the worker and ensuring the worker has the relevant experience and qualifications. 

Before engaging an agency to provide an agency worker, you should consider that agency workers will have certain rights whilst working for your business including: 

  • Access to staff facilities on no less favourable terms than other comparable staff, unless you can objectively justify treating them differently;
  • To be informed of relevant job vacancies within your business;
  • After 12 weeks, to take time off work to attend antenatal appointments or adoption placement appointments; and
  • After 12 weeks, to have certain key basic working and employment conditions, including holiday and pay, as if you employed them directly.

Circumstances can also arise which may allow an agency worker to claim to be employed directly by you or bring any claims against you. Your contract with the agency should also protect you from incurring tax liabilities, particularly if the worker provides services through a managed service company or a personal services company. 

We can review the contract with the agency to ensure it gives you adequate protection and assist you should the agency worker claim to be employed directly by you or bring any claims against you. 

Altering terms

We can assist businesses with options surrounding making changes to current terms and conditions of employment, such as ensuring you have the right to temporarily lay off your workers and altering shift patterns, or normal working hours.

Reducing your workforce 

We can advise the best practices and safest ways of reducing your workforce through restructuring, or redundancy.

If you need assistance…

We can help you find the best options for a flexible workforce and ensure you comply with the legal framework and the arrangements work well for you. Please contact Kerry Curd in the employment team on 01626 202404 or email kerrycurd@wbw.co.uk. WBW Solicitors has offices in Newton Abbot, Exeter, Bovey Tracey, Exmouth, Honiton, Launceston, Paignton, Torquay and Sidmouth. 

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.