To be or not to be employed: bank workers

Bank workers are the mainstay of the care industry, yet HR professionals have struggled for years to define whether they are employees. A recent employment tribunal may have answered the question…

What are bank staff?

The term refers to a pool of people that an employer may call on when they need to cover shifts, holidays or just need extra staff as and when. They are prevalent in the care industry – many nurses and care assistants are on call when they are needed in care homes, hospitals and other health facilities. It is also a form of employment used for industries where work is seasonal.

When workers are classed as bank staff, there is no obligation on the part of the employer to provide regular work, nor is there an obligation for the worker to accept any shift or work if it is offered.

While employees benefit from the ability to get extra staff at short notice, for the bank worker there is none of the security of a permanent position, and none of the protection that is usually offered to employees.

For some bank workers this is perfect – they may only want to work on a very flexible basis, perhaps to work around their partner’s shifts, or around other obligations they have – perhaps caring for their own children or grandchildren, for instance.

However, where a bank worker has been used by one employer on a regular basis, there have been instances where they have taken the employer to a tribunal – arguing that in fact they are actually an ‘employee’ rather than a ‘worker’ and that they should be afforded the same rights.

Little v BMI Chiltern Hospital UKEAT/0021/09

A recent case involved Mr Little, who took the BMI Chiltern Hospital Trust to Employment Appeal Tribunal (EAT). In Mr Little’s case, he had been working regularly for the BMI for various periods over nearly 16 years, working an average of between 20 and 30 hours a week as a bank theatre porter.

Written agreements were in place that confirmed that the work would be on an ‘as and when’ basis, that no work was guaranteed, and that Mr Little was perfectly entitled to refuse any work offered. However, there was a stipulation that if he refused work on four consecutive occasions, or was unavailable to work on four consecutive weeks, he would be removed from the bank.

The unfair dismissal claim resulted when the BMI terminated the arrangement for Mr Little to work on the bank.

However, because only employees can bring a claim for unfair dismissal, a pre hearing review had to be held to decide if he was an employee or not. Thanks to the fact that there was no obligation on the part of either party to provide or accept work, the tribunal decided he was not an employee and his claim failed.

That was not the end of the story – Mr Little appealed the decision, on the basis that each separate period of work for the BMI equated to a separate contract of employment and that during each period, there was mutual obligation.

However, the tribunal decided that while there were separate contracts, these were for freelance services and not employment contracts, so his appeal failed.

So, what does this mean for employers?

While you may think this means that you will never be at risk of bank staff claiming that they should have the rights of an employee, you would be wrong. Each case will still be judged on its own values.

However, HR teams should ensure that the following are in place to ensure that they are in a strong position should they ever find their company facing a tribunal:

1. Ensure there is a written contract outlining both parties’ obligations.
2. Ensure you conduct regular reviews of how and when bank staff are employed – ensuring that they are not regularly used for the same role, or same regular hours for instance.
3. Written confirmation that the bank worker understands there is no mutual obligation.
4. Ensure there is provision made for shifts to end partway through with no obligation for you to pay for unworked hours.

If you would like to discuss this subject further and how it could help your business, please contact Cecily Lalloo at Embrace HR Limited.

T: 01296 761 288 or contact us here.

Based in Aylesbury, Buckinghamshire, Embrace HR Limited supports business owners who do not have their own HR department or those that do but need help from time to time. We also work across the Home Counties of Oxfordshire, Bedfordshire and Hertfordshire, and also SMEs based in London.