Risky temps
Manufacturers have traditionally enjoyed the flexibility of being able to take on and then shed temps as demand fluctuates, often in response to a spike/dip in orders. Clearly this is a good thing for manufacturers and also for those people who chose to undertake this manner of working.
But what really are the risks and rewards associated with temporary staff?
The benefit?
In one word: "flexibility". The perceived wisdom is that organisations have the flexibility to terminate the contract with the temporary worker without being liable for unfair dismissal or redundancy pay. Contracts can be ended without tears and temps who are 'not working out' can be replaced seamlessly.
The rights of temporary employees
But it is a misconception that temps have no rights at all. What kind of rights they have depends on what kind of 'temp' they are. Temps can be:
- 'agency workers'
- 'temporary employees'
- 'self employed contractors'
Which one of these your 'temps' might be depends on a number of factors and the whole thing can be a bit confusing. Nevertheless, the important points to note are that those workers who are subject to the least legislative protection are agency workers and even they have:
- the right to not suffer discrimination on the grounds of sex, race, gender reassignment, marriage and civil partnership, pregnancy and maternity, sexual orientation, religion or belief, age or disability
- the right to equal pay for men and women
- the right to statutory sick pay
- the right to take time off for dependant leave
- the right to take time off for antenatal care and protection against dismissal for pregnancy
- the right not to be discriminated against on grounds of sex, race, gender reassignment, marriage and civil partnership, pregnancy and maternity, sexual orientation, religion or belief, age or disability
- entitlement to annual leave and the same rest breaks and restrictions on their working hours as apply to other workers
- protection against deductions from wages
- the right to be paid the appropriate National Minimum Wage
- the right to be considered a 'data subject' under the Data Protection Act 1998, and so will be entitled to the same protection as other employees and workers
- the right to a safe place of work
- the right not to be subjected to any detriment for making a protected disclosure.
If your 'temps' are actually Fixed Term Employees, for example employed for a 3 month period to assist with a bulge in orders, they are protected under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations. These regulations provide that such fixed term employees must be treated the same as other employees; which means they have additional rights to those listed above including:
- protection against dismissal on grounds of health and safety, asserting a statutory right and other prohibited grounds
- the right to receive a written statement of main terms and conditions of employment
- protection against deductions from wages
- the right to be accompanied at disciplinary and grievance hearings.
While some temporary employees may also have the right not to be unfairly dismissed, this is unlikely to be an issue for organisations as the engagement of the temporary employee will be for weeks rather than months.
Other risks
In some cases, the need to meet the immediate demand means that temporary employees are recruited in haste and sometimes without the appropriate background checks.
Aside from the reputational consequences of recruiting the wrong person, there is also a legal and potential financial risk. For example, organisations will be exposed to a serious risk under the Immigration, Asylum and Nationality Act 2006 if they employ an individual who does not have the right to work in the UK or who is working in breach of their conditions of stay in the UK. The risk of failing to carry out the appropriate checks can land organisations with a civil penalty of up to £10,000. With the increase of forged documents, which in some cases can be hard to spot, the importance of organisations taking the proper time to check the documents cannot be stressed enough.
Even though there may not be an obvious threat of an organisation employing an individual who poses a criminal threat, in the current economic climate it is well documented that staff dishonesty is on the increase. Temporary employees are for some organisations the biggest risk for employee fraud/theft as the nature of the engagement means that the individual is in and out of the organisation very quickly, and in most cases the individual has been placed in the role with very little to nil background checking.
Manufacturers should ensure that they are familiar with the rights of temporary employees and ensure compliance with internal policies and guidelines to ensure that proper background checks are carried out before the engagement is confirmed.
The thing to remember is that the greater the contractual distance between the manufacturer and the individual, the fewer restrictions are place on the business by the law.
The contents of this brochure are intended as guidelines for clients and other readers. It is not a substitute for considered advice on specific issues. Consequently, we cannot accept any responsibility for this information or for any errors or omissions.
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