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Casual vs Fixed Term - Have you got it right?

Updated: Apr 14, 2021

A landmark case has determined that a group of Uber taxi-drivers are workers and not self-employed contractors. The tribunal examined the reality of the relationship between them and determined that the relationship should not be bound by what the documentation states, so the agreement between them, was disregarded. Therefore the taxi-drivers are entitled to national minimum wage, holiday pay and whistleblowing protection employment rights.

This case has highlighted the importance of determining the employment relationship and the terms upon which the individual is employed, that is whether they are an employee, worker, self-employed, casual, fixed term or temporary.

It is often easy to assume that a casual worker is someone who works on a temporary basis or is fixed term. However, each employment basis is treated differently from a contractual perspective.

Before recruiting to a role, ask yourself the following questions:

  • how long will the school require this job role?

  • are there any outside factors that impact upon the longevity of the role, such as funding?

  • will the employee be required to work consistent hours week in, week out?

  • what justification does the school have for defining the role as not being required on a permanent basis?

If the work is not constant or is on an 'as and when' basis, then the individual should be employed on a casual contract. However, if the working pattern changes to a regular pattern of hours, then you would need to issue a new contract to reflect the change in the employment relationship.

If the work is based on specific funding for the educational provision of an individual pupil(s) or for the completion of a specific project, then the individual should be employed on a fixed term contract. Therefore at the point when the funding is no longer available, the contract would cease.

When an occasion arises that an employee is temporarily absent from work due to ill health or family leave, then this gives rise to employing an individual on a temporary contract.

It is important to remember when using these types of contracts, that employees who continue to be employed after 2 years, will be entitled to full employment rights. In addition, if the employment continues for 4 years or more, then the employee will be determined as a permanent employee.

These types of contract can not be used as a means to assess an individual's ability to perform the role to an expected standard. Therefore they must only be used for the appropriate purpose, as set out above.

It is important to get the employment relationship right from the start and to keep the relationship under review, so that it does not materialise into a different contractual relationship. Or, if it does, to acknowledge this change and to amend the contractual terms of employment.

If you are unsure as to what type of contract to employee an individual on, or if a particular contract needs to come to an end, but you are concerned about the implication of potential automatic employment rights, then please seek further advice and guidance.

Types of contract factsheet 0321
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