The Gazette 1987

GAZETTE

JULY/AUGUST 1987

Temporary and Part-time

Employees

T emp o r a ry a nd p a r t - t i me w o r k e r s ha ve b e c ome an

i ncreas i ng part of our wo r k f o r c e; pa r t - t ime emp l o yme nt

be i ng 6 . 7% of t o t al emp l o yme nt in 1 9 8 3 and f ema l es

comp r i s i ng 7 2 % of t o t al pa r t - t ime wo r ke r s .

As of 1st Apr i l,

1 9 8 5 , t he t o t al number of pa r t - t ime emp l oyees w a s 6 8 , 9 0 0

of wh i ch 5 1 , 4 0 0 we r e f ema le and 1 7 , 5 0 0 ma l e .

The

economic recession has resulted in an increasing number un-

emp l oy ed, app r ox ima t e ly V« mi l l i on at year end 1 9 8 6 . Thus

by necess i ty persons are cons i de r i ng a l t e rna t i ve wa ys and

means of wo r k i ng, e.g. being se l f -employed, shorter wo r k i ng

we e k s , j ob shar i ng .

I ndeed, mo re r ecen t l y, I r e l and 's t wo

largest t r ade un i ons — t he I T & GWU and t he FWU I have had

an adver t i s i ng c amp a i gn d i r ec t ed t owa r ds pa r t - t ime (and

l ower paid) emp l oyees for membe r sh ip purposes. Such

c amp a i gn is s i gn i f i cant as t r ade un i ons have su f f e r ed

cons i de r ab ly f r om loss of memb e rs due to t he emp l o yme nt

s i t ua t i on.

The purpose of this article is to

consider both the legal status and

statutory rights of such workers.

The descriptions ' t empo r a r y ',

' casua l ',

' s ho r t - t e rm ',

and

'seasonal work' are not legal des-

criptions. It is frequently assumed

that such employees have no legel

rights under common law or

p r o t ec t i ve legislation. Thus,

resulting in the my th of an

employment relationship having no

application of the law. Nonethe-

less, there are a considerable

number of employees who do not

fall within the scope of protective

legislation (e.g. work less than 18

hours per week). One UK specialist

in employment law criticised the

fact that so many of these

'marginal' workers fell outside the

scope of protective legislation; the

reason being that nearly all

statutory rights created since the

1960s are limited to employees

under a contract of employment

(i.e. contract of service). In view of

this limitation, it is questionable as

to whether such statutory rights

should continue to rest on the

common law contract of service.

The I.L.O. state that approximately

60% of the world's labour force

are not effectively protected by

employment legislation.

Employee or Independent

Contractor

At common law the duration of a

per son 's emp l oyment is not

relevant as to whether he is an

employee or not. Thus, so long as

he is an employee, a temporary/

part time employee has the same

common law rights and obligations

as the f u l l - t ime

employee.

Accordingly, such employee can

bring a claim for breach of contract

i.e. wrongful dismissal.

Frances Meenan,

Solicitor

Such claims are few. Should

breach of contract arise the Courts

may require specific performance

of the contract (re-employment)

but this is very rare, damages are

the most likely remedy as the

common law permits either party

to bring the contract to an end by

due notice. Thus damages limited

to the notice period may be

minimal. If the worker is not an

employee the claim would be for

breach of commercial contract.

If a worker is an employee,

protective employment legislation

may apply. However, to fall within

the scope of the legislation he must

be normally expected to work at

least 18 hours per week and have

the requisite continuous service

(52 weeks Unfair Dismissals Act,

1977, 13 weeks Minimum Notice

and Terms of Employment Acts,

1973 and 1984 and 104 weeks

Redundancy Payments Ac t s,

1 9 6 7 - 1 9 8 4 ). Should there be

breach of contract (dismissal), the

employee has the option of

pursuing a claim for wrongful

dismissal or claiming under the

Unfair Dismissals Act, 1977. Most

empldyees claim unfair dismissal

as recourse to the Employment

Appeals Tribunal is speedy and no

costs are involved. Also, the

Tribunal can award re-instatement,

re-engagement or compensation

(as appropriate) under the Act.

In deciding whether a person is an

independent contractor or an em-

ployee the Courts are more inclined

towards concluding that a con-

tract of service exists. The Courts

ask t wo questions (in summary),

namely:

Who controls the work of thfe

employee?

The modern work relationship

with many skilled employees

has rendered this question

and the resulting answer

rather unsatisfactory. Accord-

ingly the Courts have devised

a second question.

'Is the employee fully inte-

grated into the business?'

In reply to this question, the

legal status of a number of

categories of t empo r a ry

employees can be high-

lighted.

Home Workers

In a number of UK decided cases,

home workers have been held to be

employees. In

Airfix

Footwear

Limited -v- Cope,

Mrs. Cope

worked at home making shoe

heels; the company provided her

with tools and issued instructions.

She worked a five day week for

seven years; was paid a piece rate

and there were no tax deductions.

She was considered an employee.

Casuals

There is no definition for this oft

used colloquialism. In practice,

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