Caught in a Trap –Temporary Workers Briefing No.120

A Review of Temporary Contract Working

July 2005

Introduction

This briefing summarises the information published in a new booklet issued by UNISON Scotland on temporary contract working. The booklet is entitled "Caught in a Trap" and it contains information on the legislation affecting temporary, sessional, casual and agency workers and the issues facing them. It also seeks out a positive way forward for branch activists, UNISON members and employers through the use of stable staffing policies.

Background

Around two million temporary workers (and this includes casual, sessional and agency) in the UK today are the victims of employment loopholes, which leave them with low pay, stagnant careers and uncertain futures.

And the reason is that they have become caught in the temporary contract trap.

7.1% of workers are in temporary jobs and a number of agency temps have according to statistics increased from around 70,000 in 1992 to 700,000 in 2002.

Over the last two decades there has been a marked increase in the number of individuals whose working arrangements are described as 'atypical'. Around 82% of union reps have also reported that the number of people employed on temporary contracts in their workplace has increased in the last ten years. These include fixed term contracts, agency, casual and sessional.

This huge increase in temporary workers and the recent introduction of employment legislation such as, the Fixed Term employees (Prevention of Less Favourable Treatment) Regulations 2002, the EC Fixed Term Work Directive and the Employment Act 2002, has combined to make this issue important to both employers and trade unions.

Temporary Workers

Temporary workers traditionally report lower levels of job satisfaction, receive less work-related training and are less well paid than their counterparts in permanent employment. They also find it difficult to plan their financial future with heavier penalties placed on loans and mortgages and they are usually less geographically flexible and unable to have any sort of long-term career plan.

A survey carried out by UNISON Scotland found that a number of workers had been trapped on the temporary contract merry-go–round for anything between 20 to 30 years. Most were women who never had the opportunity to return to permanent employment after maternity leave.

A recent campaign by the Equal Opportunities Commission highlighted the fact, that 30,000 women a year lost their job as a result of having a baby. Many of them end up caught in the temporary contract trap.

In periods of rapid technical change or demand volatility, temporary contracts allow employers to hire and fire workers as they wish and the duration of a temporary job is invariably short of statutory requirements for redundancy. Workers on temporary contracts can be costlessly laid off in a downturn. However new legislation, mainly coming from Europe, is tightening up some of the loopholes and the new UNISON booklet explores the issue in some depth.

The Legislation

There are two key factors regarding legislation and the temporary worker. The first is the type of contract. As many flexible workers tend not to be 'employees' but 'workers' this restricts the legal protection they enjoy.

The second is length of service as many key legal rights require a minimum amount of qualifying service and this is a test that flexible workers also struggle to meet.

In the UK the main pieces of legislation affecting temporary contract workers include:

1. The Employment Rights Act 1996
2. The Part Time Workers (Prevention of Less Favourable Treatment) Act
3. The Fixed Term Workers (Prevention of Less Favourable Treatment) Act 2000
4. The Flexible Working Regulations 2002
5. Conduct of Employment Agencies and Employment Business Regulations 2004.

The most significant is the Fixed Term Employees (Less Favourable Treatment) Regulations 2002 which gives new rights to people in fixed term employment.

The KEY points include:

1. FTE have protection against less favourable treatment when compared with permanent employees.
2. FTE can compare their conditions to employees who are not on fixed term contracts.
3. The use of successive fixed term contacts will be limited to four years unless the use of further fixed term contract is justified on objective grounds.
4. Any redundancy waiver that is included in a fixed term contract which is agreed, extended or renewed after October 1 2002 will be invalid.

At the heart of these regulations is the principle of equal treatment and employers will have to review working practices.

What Branches can do?

UNISON recognises the ever increasing number of people working on fixed term and temporary contracts and is committed to ensuring that they receive the same equal and fair treatment from their employers as their permanent colleagues. UNISON is also committed to reducing the existing number of fixed term and temporary contracts. To carry out these objectives UNISON believes that the way forward for most organisations is the introduction of a stable staffing policy through negotiation and agreement with employers.

Stable Staffing Policy

UNISON branches should negotiate and agree stable staffing policies. This policy should provide guidance on a number of issues including:

1. implementing the legislation
2. encouraging the recruitment of staff on indefinite contracts as the norm and using fixed term contracts only where there are transparent, necessary and objective reasons for doing so.
3. Where possible introduce a ratio of permanent workers to temporary workers or better still only use temporary workers for maternity or ill health cover.
4. Correctly translate the legislation for both members and employers and keep a regular track on workers working under these circumstances to make sure all requirements are met.
5. Encourage the employer to review and update staff development policies to ensure they address the changing role of staff.

The aim of a good stable staffing policy must be to achieve a proper balance between flexible working and organisation efficiency on the one hand and the security of the employment and fair treatment of employees on the other. Departmental and organisational objectives and resources will therefore vary and it is recommended that trade union representatives identify in partnership with their employers how the policy should be implemented and how progress can be monitored.

From the outset it has to be recognised that many departments and organisations have to operate in an ever-increasing competitive market. Often they can depend on a range of funding sources, some of them variable and insecure. They need to make full use of modern and flexible work organisation and to adopt patterns of work that will fit challenges in the future.

Further Information

Caught in the Trap – The Temporary Workers Trap.

UNISON Scotland has published a booklet on the temporary contract worker. It contains information on the legislation affecting the temporary worker, the definition of a temporary worker/employee, guidance on how to map the workplace and advice on setting up a stable staffing policy within your organisation. It can be obtained from the Policy and Information Team, West Campbell Street, Glasgow, download a PDF file from here (195k) (click here for advice on pdf files)or by emailing d.watson@unison.co.uk.

Contacts list:

Dave Watson
d.watson@unison.co.uk

Peter Hunter
p.hunter@unison.co.uk

@ the P&I Team
14 West Campbell St
Glasgow G26RX

Tel: 0845 355 0845
Fax: 0141 307 2572