There are important legal reasons for farmers to distinguish between workers and employees. Farming often involves working patterns that do not fit into the more usual arrangement whereby an employee works all the time for a single employer under an indefinite length contract; many farms use workers on an agency, casual, fixed term or part time basis.
The increase in flexibility and diversity of legal and economic relationships and practices in the work place has made it more difficult to decide whether an individual doing paid work does so under an employment contract. Farmers should be aware of the rights and protections that atypical workers might have. This will depend on whether they are:
- An employee working under a contract of service.
- A worker, or
- A self employed person working under a contract for services.
Employees have the greatest level of protection, including the right (once they have acquired one year’s continuous service) not to be unfairly dismissed.
Flexible forms of working present a real risk that a worker may be found (by an Employment Tribunal) to be an employee. If so they would be entitled (retrospectively) to all the rights and protections employees receive, even if they worked part time or fixed term.
Casual labour or services performed within a regular or informal working arrangement offers flexibility to both employer and worker and often takes the form of:
- A one-off task or event
- An on-call arrangement where work is provided when available.
Farmers may be surprised to learn that despite the casual nature of this work, the courts may decide the workers are actually employees.
The test of whether a person is an employee is dependent on a “mutuality of obligation”. This means that the employer is obliged to provide work and the individual is obliged to accept. The significance of the “mutuality of obligation” is that it determines whether there is a contract of employment in existence.
Often what happens is that the working arrangement is at first informal but then a regular pattern develops. A casual worker may be able to argue that there is a global or an umbrella contract of employment which continues to exist during the periods when they are not working. Should the farmer use the same casual workers on a regular basis just at harvest time, for example, there is little risk of the worker successfully claiming to be an employee. However, should arrangements continue on a more regular basis, difficulties may arise.
A farmer who wishes to avoid being challenged by casual workers who claim to be working under an employment contract needs to keep an eye on the relationship that is developing between him and his workers. Farmers can ask casual workers to sign a contract which clearly states that the parties do not intend there to be “mutuality of obligation” but beware – this is not conclusive! If the matter is in dispute the courts will assess the facts in order to determine the true relationship.
The best advice is to have formal contracts drawn up and ensure that casual workers do not adopt a pattern of work likely to class them as “employees”.
For information about this or any aspect of employment law, contact Reggie Lloyd at Birkett Long on 01206 217347 or email reggie.lloyd@birkettlong.co.uk
