Getting the basics right as a rural employer

Employing anyone can be a complicated business – even more so when you are a rural employer as you have to be mindful of the additional protection agricultural workers have.

As one of the very few law firms in Scotland to have acted on both sides in agricultural wage disputes, we see that it is often the basics that are forgotten about and that lead to the worst problems. The law on agricultural worker rights and enforcement of them in Scotland is complex and our knowledge and experience in this area is unrivalled.

So here is a reminder of the key matters to keep on top of as an employer of agricultural workers.

What is their employment status?

One of the first points to consider is what kind of staff you have or are about to take on. The reason this matters is because the status determines the extent of the staff’s legal rights. The law currently categorises staff into three main areas:

• Self-employed
• Worker
• Employee

Those that are self-employed have the least rights whereas employees are afforded the highest degree of protection. Workers are afforded less protection than employees, but more than self-employed. You can’t simply decide what kind of status they have – it depends on various factors.

But there is an additional category of agricultural worker that provides special rights for minimum wage, holidays and other terms and conditions of employment which operate in addition to those rights provided under wider employment legislation.

So what is an agricultural worker?

An agricultural worker has to be employed in agriculture and horticulture, which includes

• dairy-farming
• fish-farming
• rearing animals
• growing produce including non-edible crops like bulbs, plants and flowers
• forestry, market gardens and nurseries
• maintaining meadow or pasture land, woodlands and reed beds

The scope of what an agricultural worker does is wider than many think.

It isn’t just the traditional farm labourer who carries out arduous work or to those who work in fields, dairy sheds or sheep pens. If the staff carry out work which is substantially performed on the farm as part of an agricultural business or if it is integral to modern farming then they could be caught.

So just because the work is administrative or managerial might not prevent the extra protection of minimum agricultural wages provisions applying under the Wage Order. Similarly, if part of their duties involve agriculture, then the time spent on that may need to be apportioned for the purposes of the Wage Order.

We can help assess what category staff fall under. Ideally, this should be done at the outset of employment.

What are the top tips to avoid disputes?

Checking you are adhering to the Agricultural Wages Guide is a good start and below are a few further suggestions.

Recording hours

Many disputes arise from the failure to accurately track and record the agricultural worker’s hours. By law, you must provide the agricultural worker with time sheets (or use an automatic system) and they must complete them and give them to you.

If you fail to do this, the worker could bring a claim through the Employment Tribunal or courts. They could also make a complaint to the Agricultural Wage Enforcement Team. That can result in inspections, and ultimately enforcement action taken against you on the worker’s behalf leading to fines. In the worst cases, there can be criminal sanctions. Proving that the worker did not work the hours they said they worked could be very difficult without keeping these records.

Contractual provision

Nowadays, from day one of employment, all new employees and workers must be given a written contract with key terms of employment. But there are even more incentives for agricultural workers to ensure the contract of employment is prepared carefully in writing.

It is possible to agree the option of paying annual wages in equal instalments over the year, regardless of the hours worked in the pay period. This can be an advantage for you as outgoings would be more consistent each week or month. But this is only possible if it is agreed in writing and meets certain other criteria. You can’t retrospectively impose this on the employee in the event of a dispute or get the benefit of it if you say it was agreed verbally. We can help draft your contracts to ensure you qualify for the benefits of the Stable Income Arrangement.

Another area which can lead to unlawful deduction of wages and enforcement action is poorly drafted penalty clauses in the contract. These clauses deduct pay when the worker does something the employer isn’t happy with. Likewise, wrongly thinking that providing accommodation to the workers fully covers their minimum wage frequently leads to underpayments. Again, we can help review these terms and advise on what can and cannot be done. Getting it wrong can be very costly.

But what if it all goes wrong?

Ideally, you can sort out these issues before a dispute arises.

But if it’s too late for that, then taking legal advice at an early stage can assist greatly. There are also various ways to resolve the dispute, for example, we can offer a mediation and resolution service. But if that fails, depending on the dispute, we can assist with defending against Tribunal claims, court action or dealing with complaints.

If you want to have your contracts reviewed to avoid costly disputes or if you need assistance with any of the matters discussed above, contact Robin Turnbull or your usual Anderson Strathern contact for further information.

You may also be interested in the following articles:

• When is your self-employed consultant actually an employee?
• How much can a self-employed people claim in holiday pay?
• Why it’s smart to know about mediation?

Legal disclaimer