50|Retail News|April 2021|www.retailnews.ie
Employment Law
The law and atypical working relationships
Barry Reynolds and Jenny Wakely, specialists in employment law with DAC Beachcroft, explain some key legal points when it comes to atypical working relationships, including part-time workers, banded hours and zero-hours contracts. ONE of the benefits of employment in the retail sector, including the FMCG sector, is the flexibility that it can often offer, for example in terms of working hours. This can be of considerable benefit to employers and employees alike. In this article, we look at some of the key elements of various types of atypical working arrangements, including temporary employment arrangements; part-time, flexible and “casual” working arrangements; and the use of agency workers. Fixed-term and specified purpose contracts Many employers regularly use fixed-term or specified purpose contracts in order to meet the needs of their businesses. One of the main advantages of these contracts is the availability of an exclusion from the protections of the Unfair Dismissals legislation where the employment comes to an end upon the expiry of the fixed term or completion of the specified purpose. However, employers should note that such employees can in some circumstances still pursue unfair dismissal claims and they also have the benefit of certain protections over and above those of more permanent employees. These protections are found principally in the Protection of Employees (Fixed-Term Work) Act 2003 (the “2003 Act”) and include protections which can be broadly described as:
1. The right not to be treated in a less favourable manner than comparable permanent staff; 2. The right to receive in writing details of when the contract will expire; 3. If the fixed-term contract is renewed, the right to receive in writing details of why that renewal is again on a temporary basis as opposed to a more permanent contract; 4. The right to receive information from the employer about vacancies; 5. The right to have access to appropriate training opportunities; 6. The right not to be penalised, including as a result of invoking the protections of the 2003 Act. Most significantly is the fact that if one of these types of contract has been renewed, the employee could accrue a right to a “contract of indefinite duration”. This can arise where two or more successive temporary contracts run to a total of more than four years and without the continuing temporary nature of the contract being objectively justified. Part-time contracts Part-time contracts are also frequently used and can range from a few hours of work per week to hours of work that are much closer to those of a full-time employee. A part-time employee is defined in the Protection of Employees (Part-Time Work) Act 2001 (the “2001 Act”) in straightforward, if rather flexible, terms. It is, broadly speaking, an employee whose hours of work are less than those of others employed in similar positions. Part-time employees are protected from discrimination in comparison to full-time employees. Discrimination is, however, permissible on very narrow grounds which rarely arise and are subjected to a very strict legal test. Discrimination is also permitted in respect of pension arrangements but only if the
