If a casual worker is fired after fighting from other members of the team, what can be done? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner and employment law specialist at Mills & Reeve, advise.

The question:
I have been working as a casual worker in the catering section for the last four years. We travel around the country working at different venues. The firm lays on transport for us. On our last job there was fighting on the coach; not everyone was involved but the hr manager said the decision of the company was to get rid of everyone and sack us all. It’s a very big catering firm and I stand to lose lots of work which I have been offered. Do I have rights as a casual worker? I feel I have been treated unfairly.

Maria O’hara

Legal advice:

Esther Smith, partner, Thomas Eggar

The answer to your question depends on whether or not you amount to an employee in your capacity as a casual worker. If you are retained on a “as and when required” basis, and whether or not there is any mutuality of obligations between you and the company you work for. What this means in basic terms is whether they are obliged to provide you with work and whether you are obliged to undertake work offered to you. If there is no mutuality of obligations then you will probably not be an employee and will therefore have no protection against unfair dismissal.

If you were an employee, you would have protection against unfair dismissal. However, this does not mean that you would automatically have a claim against the company. Subject to having followed a fair procedure in dealing with the dismissals the company could establish that it was fair and reasonable to dismissal all people involved in the incident if they are unable to identify exactly who the perpetrators were. In order to show that the dismissal was fair they need to show that their decision fell within the band of reasonable responses open to them in the circumstances. They do not need to show that those dismissed were definitely responsible for the misconduct.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar

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Martin Brewer, partner and employment law specialist, Mills and Reeve

Maria, there isn’t really enough information in your description to advise you in detail. ‘Casual’ workers do have rights. They have rights under discrimination legislation for example. If a ‘casual’ worker is an employee then there are also unfair dismissal and redundancy rights. You must take detailed advice about your employment status.

For you to be an employee there must be:

• an obligation on you personally to provide work in exchange for pay




• a sufficient degree of control exercised over you by the alleged employer to constitute you a ‘servant’ (not a great way of looking at it but it is how the law puts it)

and


• that there is nothing in the relationship that is inconsistent with employment status.

On the fairness point in general, it is good law that if an employer has identified behaviour from which it could dismiss employees, but for evidential reasons the employer can’t establish which particular employees are culpable, then it is fair to dismiss the group of employee who could have been culpable provided that this is a defined group of employees and all of them are dismissed following a reasonable investigation and following a proper process (including complying with the statutory dismissal procedure).

Martin can be contacted at: martin.brewer@mills-reeve.com

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