Santa’s little helpers have rights too

As Christmas approaches, retailers are taking on extra staff for the holiday rush.

This provides an opportunity for recruiters, but they should note they may be liable for any discrimination claims brought by temps and there is no limit to the compensation that may be awarded in such cases.

Seasonal workers have a number of other rights, but some, such as those granted by the Fixed Term Employee (Prevention of Less Favourable Treatment) Regulations 2002 do not impose duties on agencies.

Under these rules, staff doing seasonal or casual work who have contracts for a short period, or whose employment ends when a task is completed, have a right to receive no less favourable terms than comparable permanent staff. However, if clients breach these regulations, agencies are not liable.

Compare and contrast
A “comparable permanent employee” is someone who works for the same employer in the same establishment, doing the same or broadly similar work. This is likely to give most temporary retail workers the same terms as the permanent staff who work alongside them.

In some cases the skills of the permanent staff may mean they are not properly comparable. But even where they are there may be good reasons why it is objectively justifiable to treat fixed-term employees differently.

Clearly, in some cases the cost of setting up benefits, such as pensions, would be disproportionate to the benefits workers would receive, so there is no obligation to do so. However, firms must ask the question: “Is there a good reason for treating this employee less favourably?”

Safety first
The 2002 law providing protection against less favourable treatment does not apply to agency workers. But other laws do impose duties on agencies .

If a temporary employee is less favourably treated and the reason is connected to sex, race, disability, religion, age or sexual orientation, then there will be a potential claim under anti-discrimination laws. In one case an applicant was pregnant and due to health and safety rules was unable to attend work for the whole period the employer required help. Rejection of her application on this ground was deemed to amount to discrimination.

The raft of anti-discrimination legislation applies even before workers are taken on. And where an agency is used care should be taken to ensure that equal opportunity principles are applied to all workers.

There are also health and safety obligations. Is the workplace free from risks? If not, and a worker suffers an injury, the business may face prosecution. In addition a claim in the civil courts could follow for injuries.

What if the temp is pregnant? In those circumstances a risk assessment needs to be carried out before she begins work.

Working Time Regulations
It is not just physical risks that have to be considered. All staff should be protected from bullying, otherwise a claim may be made under the Protection from Harassment Act 1997.

And agency temps are subject to the working-hour limits and rest-break rights of the Working Time Regulations.

Employers may give seasonal workers a different label but the law does not recognise any significant difference in status. So agencies recruiting seasonal staff should follow the same processes they use to recruit permanent staff.

Happy holidays!

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