Weekly dilemma: Casual hours and employee status

Susan Thomas, solicitor at Charles Russell, explains the implications of changing workers' status from casual to contract.

What is the legal status of someone employed on a casual basis? Is it related to the number of hours they work? I am HR manager at a local authority that employs museum education assistants. They run workshops for school parties at museum sites and do outreach work on school premises. The number of hours they work is determined by the number of bookings made by schools. The four casuals we use have worked an average of 300 hours a year each. The local authority I work for wants to change these workers’ status from casual to contract – what are the implications of this?

The key issue here is whether these individuals are, in employment law terms, self-employed, employees or workers. This is not judged by how many hours someone works, but depends on the nature of the relationship.

For an individual to be an employee, there must be mutuality of obligation between the parties. The employer must be under an obligation to provide work, and the employee to accept that work and perform it personally. If an individual is free to refuse work without any negative consequences, or if they are free to simply send someone else to perform the work if they choose, they will not be an employee.

If an individual is not an employee – because there is no mutuality of obligation – but undertakes to perform services personally, they may be a worker. This includes casual workers who provide services on an irregular basis and are under no obligation to accept work. This flexibility is common in zero hours contracts where the employer does not guarantee to provide work and the worker is free to turn it down. Hence, in a case involving workers engaged as power station guides on a casual, as-required basis, there was no contract of employment. There was no obligation on the workers to work, and they had failed to attend on occasions without consequence.

If the individual is free to send a substitute, or if they provide services through a business, they may well not be a worker or employee.

However, when a regular pattern of working or significant number of hours develops, a business is likely to look closely at whether the individual is, in reality, an employee.