This article is part of a series and follows on from “Joining a MAT part 8 – Identifying Partner Schools” which is a feature length downloadable article .
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With groups of schools moving towards joining a MAT a set of circumstances present themselves which Trustees should be very clear about in managing their due diligence around the schools joining the MAT. One of these we deal with in this advice note is the use of casual contracts for staff. We feel there are a number of issues that the use of casual staff may present.
Schools may have fluctuating demand for staff, which cannot always be met by recruitment of full or part-time employees. Many small schools/academies we have come across, and local authorities that also employ staff in small schools, will use casual contracts. Casual contracts or, more often known these days as Zero Hours contracts, are used to engage with a pool of casual workers who are prepared to accept work at short notice and on an irregular basis. This is most often used to supplement Teaching Assistants and Mid-Day supervisors who may have to cover for absence, trips or PE sessions at short notice.
If the work is strictly casual the school must not be under any obligation to provide work, and an individual must be free to refuse any arrangement without fear of facing disciplinary action or losing future job opportunities.
An implication for schools or, schools converting into academies or MATs, is that through custom and practice or the need to cover for a long-term absence the casual work opportunity becomes more regular and this regularity may go over a period of three months. We describe below where a casual ‘worker’ becomes an ‘employee’, and the implications of employing this type of worker.
This note covers only the engagement of non-teaching casual staff. The School Teacher Pay and Conditions Document (STPCD) cover casual supply teaching or agency teachers with regards to pay and benefits.
Mutuality of Obligation
Where there is a mutuality of obligation between an employer and employee the employee has certain employment rights.
Many employment rights are accrued through a period of continuous service e.g. the right to claim for unfair dismissal, the right to statutory maternity pay and the right to request flexible working. Although casual workers may be considered as having fewer employment rights, they may well be entitled to a range of employment rights which will have cost and operational implications.
If you engage a casual worker where work opportunity:
- occurs only once, and for a short period of time, or
- occurs more often but on an irregular or unpredictable basis, or
- where there is no obligation on the school to offer work, and no obligation on the individual to accept it
then the worker does not have the same employment rights as permanent workers.
If, however, this develops into an arrangement where the work is available on particular days and times of the week and both the Academy/ local authority and the casual worker develop an understanding (whether written or not) that the casual worker will be available and present themselves for work on those days and at those times, then it is likely that mutuality of obligation (see below) will be established and the relationship has changed to that of employer and employee.
Mutuality of obligation means that under a contract of employment, the school/academy must provide a reasonable amount of suitable work to the worker, who must carry out all such work provided. This means that the school/academy has an obligation to offer work, and there is an obligation on the individual to accept work offered.
As mentioned casual work includes an opportunity on the part of the worker to refuse work if it is offered. This is a distinction between the casual contract and the employed (with employment rights) individual. It is important that where work is offered by the school/academy and an individual does not accept this work, a note is made to this effect and placed in their file so that in the event that an individual challenges that there has been mutuality of obligation, then it can be disproved.
Workers (employment) rights usually start accruing after a period of 3 months continuous employment. Employers are required by law to provide all employees with a written statement of their terms of employment within two months of their starting work, and this statement must specify the date on which their employment began. If casual staff become employed staff through a mutuality of obligation it is important to note the date on which this occurred. It is also an area of due diligence that MATs should be aware of when transferring staff into the MAT.
Note that whilst you may be using a Casual Worker on a very infrequent, ad hoc basis, they may be working in a similar role for another school/academy on a more regular basis. This could then impact on their entitlements.
The full list of employment rights may not pertain to casual workers but the exact rights will depend on the status of the individual. The term casual worker is not well defined in law. However, as an employer individual academies or MATs must consider statutory rights for a casual worker. Some of the key areas for all workers are shown here.
- Protection against deductions from wages.
- Protection from discrimination on the grounds of race, sex, disability, part-time status, sexual orientation and religion or belief.
- National minimum wage rights.
- Working time rights including holiday pay and rest breaks.
- The right to be accompanied at disciplinary and grievance hearings.
- Whistleblowing protection.
- Possibly Statutory Sick Pay, subject to conditions. and eligibility
Every worker (whether an employee or otherwise) is also entitled to 5.6 weeks (pro-rata to hours worked) paid annual holiday and accrued holiday on termination, calculated from day one of their contract. For truly casual workers on short-term engagements this will not be made until the end of the engagement at the same time as any wages.
A casual worker on a series of casual contracts may be able to build up continuity if the periods between contracts are only temporary cessations of work. If, for example the gap lasts for seven days, Sunday to Saturday, then there is no continuity and the worker will start accruing service all over again. Where working periods are short and irregular e.g. half a day here or there or a few hours at the beginning or end of a school day, with lengthy gaps between them then it is less likely that the worker will succeed in a claim for continuity of employment. This also will not include when work was offered to the worker but this was turned down. To avoid any potential claims for continuity, academies and MATs are advised to record where work is offered and turned down. Again, these situations may also arise where a school is joining a MAT and workers are concerned about losing any work however irregular.
Casual workers may often be ex-employees. Where employment has terminated but the individual was instantly re-engaged as a casual worker, even if this was in a different role or school, it is likely that continuity of employment will be maintained and, therefore, the individual will have employment rights and service related benefits already in place that will carry over to this casual work. It is also the case in a number of smaller schools that permanently employed but part-time individuals also have a casual element of employment to cover, for example, absence or trips and visits. If these individuals have a permanent contract as well their continuity of service built up through that contract will provide them with service related benefits.
Should schools/academies wish to retain an ex-employee on a casual basis, it is recommended that there is a break of at least one month from the end of a permanent contract before engaging that individual in casual work. The normal recruitment process should also be followed when engaging an individual in casual work.
Continuity of service also affects pension rights for these employees. The Local Government Pension Scheme (benefits, membership and contributions) Regulations 2007 described the ability of casual workers to join or retain membership of the LGPS.
From 1 April 2008, a person could only be an active member of the Scheme if they have a contract of employment of 3 months or more duration. Once a casual worker reaches 3 months service, they have a right to join the LGPS and will have to opt out if they do not wish to be in the scheme.
When terminating an agreement schools should forward the usual leavers form for casual staff who will not be required for further work (either because the work is complete or schools are moving to a different staffing approach and a 3 month period has elapsed since casual work was last undertaken.)
Breaks in Service
In the case of casual Examination Invigilators in secondary schools, there is a requirement set by Ofsted Guidance for Inspectors to check for a renewed DBS check if the Invigilator has not worked during the last 3 months. Therefore, schools should consider renewing the DBS check as soon as possible. This could be quite an onerous obligation on behalf of the school/academy. If a period of 3 months has not elapsed (but will have by the time the exam season starts) one way round this is for schools to consider inviting the casual worker into school to attend a short meeting to discuss this year’s examination arrangements. This should then satisfy the continuity of employment issue and there will be no need to renew the DBS.
Please note the usual information should be held for Casual Exam invigilators in accordance with Guidance for Safeguarding Children