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 parttime workers, banded hours and zerohours contracts

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

part-time employee works less than 20% of the hours of work of a full-time colleague. The general rule is that benefits must be provided to part-time employees on a proportionate basis.

Banded hours

Flexible or “casual” working arrangements are a longstanding feature of the employment landscape and such arrangements are often of mutual benefit to both employers and employees. The concept of banded hours, while introduced relatively recently, will now be familiar across the retail sector. Employees are entitled to make a written request to their employer to be placed into a particular “band of hours”. This can arise where their written contract of employment does not accurately reflect the hours they actually work. There are eight bands, ranging from 3-6 hours to 36 hours and over. The calculation of the band into which the employee should be placed is based on the average number of hours the employee worked during the preceding 12-month period. How to calculate this has given rise to some uncertainty. Periods of annual leave are discounted from the calculation. So, for example, if an employee spends four weeks on annual leave, the divisor for the purpose of the calculation should be 48 rather than 52. On receipt of a request for banded hours, an employer has four weeks to consider it. A request may only be refused for one of the following reasons:

• There is no evidence to support the claim; • There have been significant changes negatively impacting the business; • The employer was unable to consider the request due to exceptional circumstances or an emergency situation; • Where the employee’s hours were affected by a temporary situation that no longer exists.

Once an employee has been placed in a particular band, he or she is entitled to be provided with working hours that on average fall within that band for a period of at least 12 months. An employee may bring a complaint to the Workplace Relations Commission (WRC) where he or she believes that the employer has failed to place him or her into a band within four weeks or has unreasonably refused the request. The WRC has no power to award compensation, but can direct an employer to place an employee into the appropriate band of hours.

Zero-hour contracts

Zero-hour contracts have been the focus of recent restrictions. The legislation seeks to limit their use, for example, to genuine casual work or where the employee is essential in providing emergency cover or short-term relief work. The prohibition of zero-hour contracts applies to employees whose contracts of employment require them to make themselves available

Employment Law

Recent steps designed to reduce the use of zero-hour contracts include requiring employers to make significant payments to employees where they are not provided with at least 25% of the hours for which they are required to make themselves available.

In these circumstances, the employee could be entitled to 25% of those hours or payment for 15 hours’ work.” ”

Employment Law

Flexible or “casual” working arrangements are a long-standing feature of the employment landscape and such arrangements are often of mutual benefit to both employers and employees.

to work for their employer either (i) a certain number of hours in a week; (ii) as and when their employer requires them to do so; or (iii) a combination of these. Additional recent steps designed to reduce the use of zero-hour contracts include requiring employers to make significant payments to employees where they are not provided with at least 25% of the hours for which they are required to make themselves available. In these circumstances, the employee could be entitled to 25% of those hours or payment for 15 hours’ work. The rules and practice around this must be consulted by employers and it is, of course, worth pointing out in the midst of the ongoing pandemic that the remedies do not apply where the employer is unable to provide this level of work because of a period of lay-off or short-time or as a result of an emergency or other exceptional circumstances. They also do not apply where the employee was unable to work the required hours due to illness. Each specific circumstances must be considered. In addition, as some of these rules are relatively new, there remains some uncertainty around how the obligations play out, depending on the circumstances.

Agency workers

In Ireland, agency workers are entitled to benefit from various rights from the first day (unlike other jurisdictions where there are qualifying periods) of their assignment to a business (here referred to as an end user):

• The same basic working and employment conditions as direct employees; • Access to collective facilities on the same basis as direct employees; • To receive information about employment vacancies on the same basis as direct employees.

These rights and obligations apply only to agency workers as defined in the relevant legislation. Many types of workers fall outside the definition; for example, those working under managed service arrangements. An agency worker for these purposes, broadly speaking, is one under the supervision and direction of the end user business. The liability for unequal treatment of agency workers, as referred to above, is on the agency itself. However, end users also have liabilities. These include the obligation to provide the agency with the information it reasonably requires in order to ensure compliance with its obligations. If the end user business does not provide the agency with this information, then it could find itself having to cover the liabilities which the agency incurs by reason of the failure to provide the requisite information. Perhaps most significantly, a peculiarity of Irish Unfair Dismissals legislation and one that is not widely appreciated, is that liability for unfair dismissal rests not with the agency as employer, but with the end user. This can result in a situation where the end user is fully liable even though the agency alone effected the termination. Employers should ensure that they take steps to protect themselves as much as possible from this very significant exposure. This may include seeking to include appropriate robust provisions in the relevant commercial agreements with agencies.

Takeaway for employers

Many sectors in Ireland are very dependent on atypical working arrangements. Employers should review their contracts of employment to ensure that they are up to date and reflect the reality of the working arrangements, and accurate working time records should be maintained. The position on zerohours arrangements should be navigated carefully, as should use of agency workers and indeed all atypical working arrangements. If you require any assistance in relation to any of the above matters, please contact Barry Reynolds or Jenny Wakely.

ABOUT THE AUTHORS:

FOR specific assistance and advice in respect of any of these or other employment law issues, please contact Barry Reynolds (breynolds@ dacbeachcroft.com) or Jenny Wakely (jwakely@dacbeachcroft.com) of DAC Beachcroft (https://www.

dacbeachcroft.com/en/gb/locations/

dublin/) or one of their other specialist employment law solicitors. This article is for general information purposes only and does not comprise legal or professional advice. You should not rely on any of the material in this article without seeking appropriate legal advice. Twitter: @dacbeachcroft LinkedIn: DAC Beachcroft Dublin