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When an employer in decides to dismiss their employee, the employee may make an unfair dismissal claim with an employment tribunal if it is not done fairly or with fair reason. Unfair dismissal can be a result of the employer:
- not following the business disciplinary and dismissal procedures;
- dismissing the employee without fair reason; or
- giving reasons that do not justify dismissing the employee.
As an employer, it is important to be aware of what can constitute an unfair dismissal to ensure that you only dismiss your employees with fair reason and fair procedure to avoid a potential claim at an employment tribunal for unfair dismissal. There are rules surrounding claims for unfair dismissal, and this includes who can and cannot make a claim. This article will explain:
- the different types of workers;
- whether a casual worker can claim unfair dismissal; and
- what the rules regarding this are.
Three Key Types of Workers
Casual
Casual workers carry out work for you, but not regularly. Therefore, you are not obliged to offer a casual employee work. Equally, a casual worker does not have to accept work when you give it to them, unlike if the work was through a contract. An employer may even use the word ‘casual’ in any contract they have with a casual worker.
Employee
Unlike casual workers, an employee is someone who carries out work for you based on an employee’s contract. This contract provides additional rights to workers, such as the right to request flexible working and time off for emergencies. To be classed as an employee:
- you must intend for that person to perform the work;
- you must sufficiently control the person; and
- there must be “mutuality of obligation” between you and the person, which means that you are obliged to give the person work, and they must accept it.
Worker
As an employer, you may find that some people working for you may simply be classed as ‘workers’, which means that they have an arrangement to carry out work for you, possibly through a contract, and that they are rewarded for this. This is not an employee’s contract. They also have rights associated with their status such as the right to the National Minimum Wage and a statutory rest break. A worker may include:
- agency workers;
- freelance workers;
- zero-hour contract workers; and
- casual workers.
Unfair Dismissal
Whilst both employees and casual workers enjoy certain rights, there are some rights that casual workers generally do not have the right to. One of these is the protection against unfair dismissal, even if they have a substantial reason for raising this.
However, whilst a casual worker does not have the right to claim for unfair dismissal, they can still appeal the dismissal through their employer’s appeals procedure where they feel the dismissal was unfair. In addition, the casual worker may involve a trade union if they belong to one.
If an employer does not have an appeal procedure, the casual worker may decide to informally chat to their employer to see if there are any options for reinstating their work.
If the dismissed person is an employee, they may have grounds to claim unfair dismissal. In some instances, you may deem an employee under an ‘umbrella contract’ to be casual. This is when the casual worker has been working for the employer through a series of mini contracts, yet when having a break between those contracts, an overriding contract has been found between the casual worker and the employer. This means there was enough “mutuality of obligation” between the two to deem the casual worker an employee.
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Key Takeaways
Employees may be able to claim unfair dismissal, but casual workers do not generally enjoy this right. However, whilst a casual worker cannot claim against an employer for unfair dismissal, they can dispute the dismissal with the employer through the employer’s dismissal procedure.
Where the employer does not have a dismissal procedure, they may still informally try to negotiate with the employer regarding their work. As explained in this article, an employer should also know there can be some vagueness around whether those working are casual workers or employees. Therefore, where a casual worker may be deemed an employee, they may be entitled to claim unfair dismissal.
If you need help with unfair dismissal and casual workers, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0808 196 8584 or visit our membership page.
Frequently Asked Questions
Whilst a casual worker cannot claim unfair dismissal, they can take action against using the employer’s dismissal procedure. They may also try to negotiate with the employer informally.
No, there are no circumstances in which a casual worker can claim unfair dismissal. However, an employer should note that there have been instances where those who were considered casual workers by the employer were found to be employees. In such an instance, they may then be able to claim unfair dismissal.
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