Seasonal staff have same rights as full-time employees, warns lawyer

Employers are advised to give the same attention to detail in the contracts for temporary workers as they do for long-term staff

Joanne Hyde, partner at law firm Lewis Silkin Dublin.

Employees taken on for short-duration contracts have the same employment rights as anybody else, a leading lawyer has warned employers.

Joanne Hyde, partner at law firm Lewis Silkin Dublin, cautions employers to apply the same attention to detail in the contracts offered to temporary workers as they would to those in longer-term work arrangements.

The legal frameworks apply just as strictly in all cases. For example, employers in sectors such as retail and hospitality often take on extra workers on temp contracts for the festive season and other busier periods of the year.

In this Q&A interview, Joanne Hyde outlines some of the legal considerations that employers need to bear in mind, particularly in relation to fixed-term employees.

What are some of the key points of contention for both employers and employees around temp contacts for the festive season?

There is no legal concept of a casual or seasonal employee. From a legal perspective, most temporary employees are engaged for a fixed period or a fixed purpose. 

Although a fixed-term employee’s tenure may be short-lived during the festive period, their employment rights and entitlements are not hugely different from their permanent colleagues. The rights of temporary employees this Christmas are underpinned by the Protection of Employees (Fixed-Term Work) Act 2003 (“2003 Act”), meaning that fixed-term employees cannot be treated in a less favourable manner in respect of their conditions of employment than a comparable permanent employee unless there is an objective justification for the difference in treatment. 

For example, if a comparable permanent employee is entitled to overtime pay this Christmas, a fixed-term employee is also entitled to the same rate of overtime pay as the comparable permanent employee. Employers should also note that the 2003 Act also gives fixed-term employees a right to be informed of any permanent vacancies within the business.

What advice do you have for employers in relation to avoiding regular pitfalls with temporary employment scenarios?

Employers must be cautious when structuring and renewing a fixed-term contract. Failure to comply with the 2003 Act can result in complaints to the Workplace Relations Commission, which may order reinstatement or compensation (up to two years’ remuneration).

Employers should take the following steps to ensure compliance and avoid any legal pitfalls: 

• Maintain comprehensive records of contract durations and renewal dates;
• Provide clear, written justification for each contract renewal and ensure that renewals are done in advance of expiry of the prior contract; and
• Ensure all contracts are properly signed and include all legally required clauses and provisions.

What are the main elements that need to be itemised in these contracts and any other information shared with temp workers?

It’s important to remember that the duration of an employment contract is irrelevant when it comes to an employee's rights. Under the Terms of Employment (Information) Act, 1994, fixed-term employees have the same rights as permanent employees. 

They must be provided with a written statement of the ‘core terms’ within five days of commencing employment, and a full employment contract must be issued within one month of the start date. 

To mitigate legal risk, it’s important that certain clauses are included in fixed-term contracts. Employers should include a probation period, which must be proportionate to the contract’s duration and nature of work. For example, a three-month fixed-term contract cannot have a three-month probation period.

A notice provision should be included in a fixed-term contract, allowing the employer to terminate the contract early, and with notice, even before the expiration of the fixed term.

Employers should exclude the application of the Unfair Dismissals Acts to a dismissal which arises by reason of the expiry of the fixed-term. Contracts should explicitly state that dismissal by reason of expiry of the fixed-term does not constitute unfair dismissal. 

This clause must be in writing, and the contract must be signed by both parties for that provision to be valid.

What flexibilities does the employer have in relation to shortening or lengthening the duration of the contract?

One of the most critical aspects for employers is the limitation on renewing fixed-term contracts. Where an employer renews a fixed-term contract, they must provide a statement setting out the objective reasons why the contract is being renewed, and a permanent role is not being offered.

 Furthermore, if an employee is employed on two or more continuous fixed-term contracts which exceed 12 months, they may have a valid unfair dismissal claim if the contract is subsequently ended. 

Where cumulative service exceeds four years, then the latest contract is be deemed to be a contract of indefinite duration, unless the employer can objectively justify the use of continued fixed-term contracts.

   These rules are unlikely to be raise issues where a temporary employee is engaged on a short-term basis, for example, to cover the Christmas period. But employers should monitor contract durations and renewal patterns to avoid inadvertently creating a permanent employment relationship.

All fixed-term contracts should contain a notice provision, allowing the employer or employee to terminate the contract early, on notice before the expiration of the fixed-term.