Casual workers: still marginal after all these years?

Pages75-93
DOIhttps://doi.org/10.1108/01425450110366282
Publication Date01 Feb 2001
AuthorPatricia Leighton,Richard W. Painter
SubjectHR & organizational behaviour
Casual
workers
75
Employee Relations,
Vol. 23 No. 1, 2001, pp. 75-93.
#MCB University Press, 0142-5455
Received September 2000
Revised September 2000
Accepted September 2000
Casual workers: still marginal
after all these years?
Patricia Leighton
University of Glamorgan, Pontypridd, Wales, UK, and
Richard W. Painter
Staffordshire University, Stoke-0n-Trent, UK
Keywords Temporary workers, Employment law, Legislation, Employment protection
Abstract The recent House of Lords decision in Carmichael v. National Power plc decided that
a casual/zero-hours worker was self-employed and thus excluded from most of the basic
employment statutory rights. The aims of this article are to note the incidence and characteristics
of the casual workforce in the UK and EU; to explore the current legal framework applying to
casual workers, including the decision and implications of Carmichael; to note recent and
intended legal measures which have particular relevance for casual workers; to evaluate the likely
effectiveness of those recent or proposed legal measures; and to consider possible alternative
strategies to establish an appropriate framework for casuals.
The article was prompted by two matters. The first was the recent House of
Lords decision in Carmichael v. National Power plc [1999] IRLR 43. This
decided that a casual/zero-hours worker was self-employed and thus excluded
from most of the basic employment statutory rights.
Mrs Carmichael and Mrs Leese worked as power station tour guides. When
they were offered the work they were requested to sign a letter that stated: ``I
am pleased to accept your offer of employment as a station guide on a casual as
required basis''. The guides were paid an hourly rate as determined by the
relevant National Joint Council and they were paid after deduction of income
tax and national insurance at an employed person's rate. They received
training, a uniform and, when necessary, a company vehicle. In 1989, when
they started the job, they only worked an average of three or four hours a week,
but, by 1995 they were working as much as 25 hours in a week. On these facts,
the House of Lords, overruling the Court of Appeal, upheld the decision of the
industrial tribunal that the guides were not entitled to a written statement of
particulars of employment as they were not ``employees''.
The decision not only had negative implications for Mrs Carmichael but it
continues a long tradition whereby courts have laboured hard to find a
convincing approach to and legal formula for analysing casual work. It will be
argued that not only is the current legal formula badly flawed in terms of its
analysis of the employment relationship between casuals such as Mrs
Carmichaeland their employer but it alsofails to recognise the essential nature of
self-employment, the category into which Mrs Carmichael was consigned. The
details of the Carmichael decisionand preceding case law will be considered.
The second prompt for this article arises out of the first. This is recent and
current legislative initiatives to respond to the disadvantages suffered by
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Employee
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23,1
76
casual workers. These include the 1999 European Fixed Term Work Directive
and the probability, through S.23 of the Employment Relations Act, 1999, of
extending statutory protections to people such as Mrs Carmichael.
However the aims of the article go wider. Given that casuals are a sub-category
of fixed term work of various kinds, which together make up a significant part of
any labour market, there is a need to explore what type of legal and other
protections are appropriate for them and what legal approach and strategy could
be usefully developed to ensure adequate protection. In t his context, it is
important to explore the day to day realities of casual work. Understandably, for
some, it is the opportunity to earn immediate and extra cash ± for the student, the
young mother with a few hours to spare or perhaps the retired person who wants
to remain economically active etc.. However, for many, casual work is not a
question of choice, it is the only work on offer. It is rarely well paid (unless the
casual work is as a doctor's locum, itinerant manager or, say, ``trouble shooter'')
and its main characteristic is its intrinsic insecurity. The practical reality may be
of a ``casual'' contract which has lasted months or even years: the legal reality is of
a contract which will end, often suddenly, on the happening of an event, lack of
available work or customers etc. leaving the casual with no legal redress. Given
choice, most, especially male casuals, desire a permanent job, not least because
there are many implications of casual work beyond the workplace. Insurance
cover, mortgages and credit is notoriously difficult to obtain and arranging
holidays or breaks can be complicated.
In terms of work-related problems, the lack of paid holidays (the Working
Time Regulations, 1998 are extremely complex for casuals) , occupational sick
pay, access to occupational pensions, let alone an incremental pay scale and
career management almost inevitably leaves casuals ``at the bottom of the
pile''[1]. This is especially so in a context where human resource management
(HRM) initiatives towards cementing the relationship between the standard
employee and the employer have grown apace. The incidence of share option
schemes, consultation processes and welfare/health schemes and the like are
increasingly standard features in some sectors of employment; the casual
worker is not only excluded from these opportunities but appear to be outside
HRM considerations (Leighton et al., 1992). Indeed, senior managerial pressures
on many HRM departments to be lean and efficient have focussed on ``head
counts'' of core staff. Efficiency can be demonstrated by a reduced core, but one
supplemented by the almost hidden casuals.
An extremely important issue is that of the interface between work and the
social security and tax systems. The correct contributions category and record
are the pre-requisites for not only such benefits as the Job Seekers Allowance
but to less direct opportunities such as the New Deal Scheme which assists
unemployed people into work. The rules of such schemes are complex and tight
± the previous casual worker, especially one considered self-employed finds it
extremely difficult, if not impossible, to claim certain benefits or opportunities.

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