Rights between assignments

Whether casual workers have employment rights between assignments will depend on the contractual arrangements between the parties, worked out by looking at the contract documents and the surrounding factual context, including the parties’ inequality of bargaining power (see pages 48-51). The legal question here is, did the parties intend to create mutual contractual obligations between each assignment? In other words, is there a continuing obligation, between each assignment, on the employer to offer some work, and on the worker to do some work if offered? Where this kind of continuing obligation is found, the cases often refer to an “umbrella contract”.

In Carmichael v National Power [2000] IRLR 43, workers engaged as guides at a power station had a contract to work “on a casual, as required basis”. They brought a tribunal claim asking for a statement of employment terms. To succeed, they needed to prove they had 13 weeks of continuous service. Since they worked only intermittently “as required”, the House of Lords (now the Supreme Court) decided that there was no mutuality of obligation on the power station to offer work or on the guides to accept work in between each assignment. As a result, there could be no “umbrella” contract of employment covering the periods when the guides were not working. This meant they could not establish the necessary continuous service and the claim failed.

The absence of an employment relationship between assignments makes it very difficult for casual workers to enforce employment rights that require continuous service, such as the right to claim unfair dismissal. Sometimes the statutory rules on continuity of employment can be used to help bridge gaps in service continuity. These rules are found in sections 210 to 219 of the ERA 96. For more information see: Unfair dismissal — what is continuous employment? (page 302). These issues have become much more pressing with the spread of an unwelcome variation of “casual” work — the “zero-hours” contract.