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Document updated/added on 13.03.2020

Topic: Contractual clauses

casual worker agreement
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Casual worker agreement

Casual worker agreement

If you use casual workers where there’s no guarantee you’ll offer them work and the worker won’t generally be expected to accept any work offered, you can use our casual worker agreement. Whilst our agreement is drafted to confer worker status, and not employee status, an employment tribunal will always look at whether the drafting reflects the true intention of the parties and will consider what happens in practice.

Worker status

The intention in our Casual Worker Agreement is that the individual will be a worker, rather than either an employee or a self-employed contractor or consultant. For genuinely self-employed consultants, use our Consultancy Agreement. For employees, use our Written Statement of Employment Particulars. Workers aren’t entitled to the extensive employment rights and protections that employees have but they do benefit from some employment rights. Our agreement is for use where you want to engage casual workers on an ad hoc, as required basis to meet your fluctuating business demands and so there’s no guarantee of an offer of work. Likewise, the worker will generally not be obliged to accept work as and when it is offered. Our agreement aims to provide you with as much flexibility as possible while at the same time ensuring you incur as few legal obligations to the worker as possible. From 6 April 2020, all new workers must be issued with a written statement of employment particulars that meets the requirements of s.1 Employment Rights Act 1996, not later than the beginning of their engagement. Our agreement incorporates those statutory requirements. To the extent that you add to or amend any of the provisions in our agreement, careful drafting is required to ensure that you don’t unintentionally issue a worker with an agreement which they may later rely on as evidence of an intention to create an employment relationship.

Employment risk

The main issue with casual workers is whether they are, in reality, employees employed under employment contracts. While our agreement aims to ensure that the individual doesn’t obtain employment status, or build up continuity of service between assignments, employment tribunals will always look at whether the drafting reflects the true intention of the parties, because the labels attached to an agreement aren’t determinative of employment status. The tribunal will consider what the actual position is and so drafting alone won’t prevent a finding that a casual worker is really an employee, or that an overarching umbrella contract exists between assignments, or both, where the facts support this. To try to avoid this situation, don’t get into a pattern of regularly offering work to the same casual worker (particularly if they invariably accept it), make sure casual work assignments are not too lengthy and are ideally to cover a specific project or event and have a sufficient gap between assignments.

Agreement terms

Our agreement has been drafted: (1) to emphasise the lack of mutuality of obligation between the parties; (2) so that its terms will apply to each assignment (to save you having to issue a new agreement every time that work is offered and accepted); and (3) with no presumption of continuity of service between assignments (although the worker may still try to argue that there’s an overarching umbrella contract in place covering the gaps between assignments).

 

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