Whether you wish to engage someone to work for you as a general farm worker, or for a defined period such as during lambing season, planting or harvesting, it is important that you set out the terms of their engagement in a written contract to avoid confusion and possible claims further down the line.
Seasonal or casual workers are neither self-employed nor employees. They don’t have the same employment rights as employees (such as the right to bring an unfair dismissal claim after 2 years’ service). However they have more employment rights than the truly self-employed.
Seasonal workers enjoy the right to:
- a written statement of particulars of engagement (from 6th April 2020)
- itemised wage slips
- receive the National Minimum Wage
- auto enrolment into a pension scheme
- Statutory sick pay
- paid holiday
- protection under the Working Time Regulations 1998
- not to suffer unauthorised deductions from wages
- protection from discrimination
Casual Worker Contracts
Casual worker contracts, and in particular zero hours contracts, have a bad reputation in the press because many of them used to contain exclusivity clauses i.e. clauses which prevented the worker from taking casual work elsewhere. Such clauses are now unenforceable which leads to greater flexibility in the labour market.
If properly drafted casual worker contracts can give certainty to both parties. In particular consider how long do you want the engagement to last? Is it for a particular event (e.g. lambing season) or length of time (i.e. a fixed term contract) or do you need someone available all year round as you can’t guarantee when you will have work for them or that the amount of work fluctuates throughout the year depending upon the seasons?
Employers should be careful to use the correct contract particularly if they tend to offer work to the same person year after year. If the contract is open ended with no fixed term, continuity of service and holiday may accrue throughout the entire year rather than just during the time that they actually do work for you. There is also a danger that mutuality of obligation (i.e. the duty to offer work and the duty to accept work offered) could be inferred and that the worker might be construed as being an employee with enhanced employment rights.
Holiday Entitlement 
If a worker is employed on a fixed term, and they haven’t taken holiday during that fixed term, they will be entitled to be paid in lieu of holiday at the end of the fixed term. It can sometimes be difficult to calculate holiday entitlement for zero hours casual workers as their hours fluctuate and they may well start or end# working part way through the holiday year. Current guidance is that holiday accrual should be calculated at 12.07% per hour worked (so multiply the number of hours worked by 12.07%).
In the future, as and when the new Employment Bill is passed by parliament, it is likely that casual workers with more than 26 weeks’ service will have the right to request a more stable and predictable work pattern.
Also worthy of note is that the Home Office and DEFRA announced on 24th December 2021 that the Seasonal Worker visa route for the horticultural sector will be extended until the end of 2024 allowing foreign workers to work in the UK. 30,000 visas are available this year with the potential to increase to 40,000 should the need arise. The number of available visas will taper down from 2023 and the sector will be required to improve pay and conditions. The Home Office has updated the seasonal worker sponsor guidance to tighten the compliance requirements.
If you have any questions regarding seasonal workers or any other employment law matters, please contact Sally Lomas Fletcher, Associate Solicitor, or another member of our Employment Law team.
Sally Lomas Fletcher, Associate Solicitor, Jacksons Law Firm
