Your rights: Full-time rights for 'temps'

Q. We have "temporary" workers who have been working as temps for four to five years. They do not receive sick leave nor do they get annual leave.

Isn't there a law that says after a certain amount of time working at one place these workers should be made full-time workers?

Can they claim back pay for annual leave?

A. Whether or not long-term "temps" have become permanent staff members depends on many things.

There is no specific law that says that after a certain amount of time a "temp" becomes a permanent staff member.

But, certainly, if temps have worked in the same work place for four to five years it is likely that the law will treat them as permanent staff.

Probably the main factor will be whether or not they work full-time, week on, week off.

If they work full-time hours and work all or most working days, on a regular basis, there is a strong chance they will be treated in law as permanent staff. But if they typically work only periodically, perhaps two or three days in one week, then not at all for a week or two, then another two or three days, they are more likely to be regarded as true temps.

They have simply been doing temporary assignments for the same employer for a lengthy period.

Employees become entitled to sick leave only after they have worked for an employer for six months.

If these people are truly temps, working on a series of short-term assignments, they will not have become entitled to sick leave.

But if the pattern of their work is such that they can properly be treated as permanent staff, they should have been receiving sick leave if they needed it.

Sick leave would, of course, be available only if they were sick on a day on which they ordinarily worked.

Claiming back pay for annual leave will depend on two things.

First, has the employer been paying them holiday pay at the end of each assignment? This assumes, of course, that they are not working full-time or virtually full-time.

If they are working full-time, and the employer has not been, by specific agreement, paying an extra 6 per cent holiday pay with each pay, they certainly have a claim for annual leave back pay.

The Holidays Act 1981 does say, for the purposes of calculating entitlement to annual holidays, that if a worker is employed by the same employer at any time within one month after the employment terminates, the employment is deemed to be continuous.

So if the temps have been working for four to five years and have always had new assignments within a month of each other, they will have become entitled to paid annual holidays.

But if the employer has, by agreement, been paying them holiday pay with each pay, they probably would not be entitled to backpay for annual leave.

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