Fixed-term worker less favourable treatment

Short answer

In principle, no. A fixed-term or seasonal worker generally has the right not to be treated less favourably than comparable permanent staff, but this depends on their exact employment status, whether there is a genuine comparable permanent employee, and whether the employer can objectively justify the difference. The fact that someone is a student is legally irrelevant in itself; what matters is the nature of the contract and the employment relationship.

Does the person count as a “fixed-term employee”?

The main protection comes from the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. These give a fixed-term employee the right not to be treated less favourably than a comparable permanent employee, either as regards the terms of the contract or by being subjected to any other detriment.

The critical point is that these Regulations protect employees, not the wider category of “workers”. A fixed-term contract for these purposes includes a contract for a specified period, one that ends on completion of a particular task, or one that ends on a specified event.

Seasonal and student roles can fall into a few different categories, and the label matters a great deal:

An employee on a fixed-term contract (for example, taken on for a fixed summer season, or for a defined project) is covered by the 2002 Regulations.

A genuine casual or “as and when required” worker who is not an employee is a “worker” rather than an “employee”. Such a person is not protected by the 2002 Regulations, but still has core statutory rights (see below).

A student on a placement or work experience arranged as part of a course may not be a worker or employee at all, depending on the arrangements, which changes the analysis.

So the first question is what the actual arrangement is, regardless of what it is called. Courts and tribunals look at the substance of the relationship, not just the label the employer uses.

The right not to be treated less favourably

Under regulation 3, a fixed-term employee has the right not to be treated less favourably than a comparable permanent employee as regards contractual terms or by being subjected to any other detriment. This commonly covers things like:

Pay and pay rates, contractual sick pay, bonuses and allowances, access to occupational pension schemes, holiday entitlement calculated on the same basis, access to training, and the opportunity to apply for permanent vacancies.

Regulation 2 defines who counts as a comparable permanent employee. The comparator must, at the relevant time, be employed by the same employer, be engaged in the same or broadly similar work (having regard where relevant to whether they have a similar level of qualification and skills), and generally work at the same establishment. Without a valid comparator, a less-favourable-treatment claim under these Regulations cannot get off the ground. This is often the practical stumbling block for seasonal staff, because there may be no genuinely comparable permanent employee doing similar work.

Objective justification

Even where there is less favourable treatment, it is lawful if the employer can justify it on objective grounds. This means the treatment must be to achieve a legitimate objective, be necessary to achieve that objective, and be an appropriate way of doing so.

Regulation 4 also allows a “package” approach to contractual terms: less favourable treatment on one term can be justified if the fixed-term employee’s contract, taken as a whole, is at least as favourable as the permanent employee’s. So an employer could, for example, offer a higher hourly rate in place of some benefit that permanent staff receive.

Rights that apply regardless of fixed-term or seasonal status

Some rights apply to virtually all workers and cannot be reduced simply because a job is seasonal, casual or student work:

National Minimum Wage or National Living Wage at the correct age-related rate. Students and seasonal staff are entitled to the same minimum rates as anyone else of the same age.

Paid holiday under the Working Time Regulations 1998, accruing pro rata to hours worked, including for casual and irregular-hours workers.

Rest breaks and limits on working time.

Protection from unlawful deductions from wages, and payslips.

Auto-enrolment into a workplace pension if eligibility criteria are met.

Protection from discrimination under the Equality Act 2010 in relation to protected characteristics such as age, sex, race, disability, religion and so on. Note that being a student is not itself a protected characteristic, but if less favourable treatment is really tied to, for example, age or nationality, that could raise a discrimination issue.

What is not automatically unlawful

It is not automatically unlawful to treat seasonal staff differently in every respect. Some differences are lawful because they flow naturally from the temporary nature of the work rather than from unlawful less favourable treatment. For example, seasonal staff will usually not have accrued the two years’ service needed for ordinary unfair dismissal protection or statutory redundancy pay, and a benefit that is genuinely tied to long service may lawfully not apply. Equally, if there is simply no comparable permanent employee, differences in terms may not breach the 2002 Regulations at all.

There can also be an ordinary commercial explanation for a difference, such as a different overall pay package, different duties, or different qualifications and skills, which would not amount to unlawful treatment. The key is whether the difference is genuinely because the person is on a fixed-term contract, and whether it can be objectively justified.

Missing facts that affect the answer

To give a firmer view, the following would need to be clarified:

Whether the person is an employee, a worker, or neither, and what the written contract says.

The precise nature of the alleged less favourable treatment (pay, holiday, sick pay, pension, training, chance of permanent work, or something else).

Whether there is a genuinely comparable permanent employee doing the same or broadly similar work at the same establishment.

Whether the employer has offered any explanation or objective justification.

How long the person has worked and whether there have been successive fixed-term contracts (four or more years of continuous fixed-term employment can, in some circumstances, convert the status to permanent under regulation 8).

Practical next steps

1. Identify the exact treatment complained of and compare it, item by item, with what permanent staff in similar roles receive. Keep copies of the contract, offer letter, payslips, holiday records and any staff handbook.

2. A fixed-term employee is entitled under regulation 5 to request a written statement of the reasons for the less favourable treatment. The employer must respond within 21 days. This is a useful, low-cost first step and the response can be used as evidence.

3. Raise the issue informally with the employer or HR first, then in a written grievance if it is not resolved. Many pay and holiday disputes are resolved at this stage once the point is put clearly.

4. If it remains unresolved, contact Acas, which offers free advice and runs early conciliation. Early conciliation is a mandatory step before most employment tribunal claims.

5. A tribunal claim under the 2002 Regulations must normally be brought within three months less one day of the treatment complained of (subject to the extension for the Acas early conciliation period). This is a strict deadline, so it is important not to let time run out while attempting informal resolution. Separate claims for unpaid wages, holiday pay or discrimination have their own routes and time limits.

6. For minimum wage or holiday pay underpayments specifically, complaints can also be made to HMRC (for minimum wage) as an alternative or additional route.

Bottom line

A fixed-term or seasonal student worker who is an employee should generally not be treated less favourably than comparable permanent staff on contractual terms or otherwise, unless the employer can objectively justify it or there is no valid comparator. Core rights such as minimum wage, pro rata holiday and protection from discrimination apply regardless of status. The practical questions are the true employment status, whether a genuine comparator exists, and whether the difference in treatment is objectively justified.