Employing farm workers: what you need to know

Mark Woodman, Solicitor at DAS Law, outlines what farmers need to know when recruiting farm workers.

5th August 2020

Finding enthusiastic, diligent and trustworthy employees who will be a long-term asset for your business can be an arduous and stressful process.

Here are just some of the myriad rules and regulations that you need to be aware of right from the outset.

The job advert

Be it the local paper, a farming trade magazine or a specialist recruitment website, farmers need to be very careful when phrasing job adverts to ensure they cannot be construed as discriminatory under equality and human rights guidelines.

A female worker may, for example, feel that a phrase such as “stockman wanted” puts unfair bias towards recruitment of a male employee and they could have possible grounds for sex discrimination in the event of any dispute over not being selected for interview or not getting the job.

The employment contract

When you make an offer of employment, you will be required to give the employee a written statement of particulars of employment on or before commencing employment (S1 Employment Rights Act 1996). The statement should contain:

  • Names of the employer and employee;
  • Date when the employment began;
  • Date on which the employee’s period of continuous employment began (taking into account any employment with a previous employer which counts towards that period);
  • Scale or rate of remuneration or the method of calculating remuneration, including all remuneration entitled to including any benefits;
  • Intervals at which remuneration is paid (that is, weekly, monthly or other specified intervals);
  • Any terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours) and the days of the week the employee is required to work, whether the working hours are variable and how any variation will be determined;
  • Terms and conditions relating to any of the following:
    • Entitlement to paid holidays, including public holidays, and holiday pay (the particulars given being sufficient to enable the employee’s entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated);
    • Incapacity for work due to sickness or injury, including any provision for sick pay;
    • Pensions and pension schemes.
  • Length of notice which the employee is obliged to give and entitled to receive to terminate his contract of employment and whether there is to be any probationary period and how long this is for;
  • Title of the job which the employee is employed to do or a brief description of the work for which he is employed;
  • Where the employment is not intended to be permanent, the period for which it is expected to continue or, if it is for a fixed term, the date when it is to end;
  • Any entitlement to training provided by the employer and whether this is mandatory and/or paid for;
  • Either the place of work or, where the employee is required or permitted to work at various places, an indication of that and of the address of the employer; and
    • Any collective agreements which directly affect the terms and conditions of the employment including, where the employer is not a party, the persons by whom they were made.

Fitness to work

One of the trickiest areas for farm employers is how to manage the replacement of ageing staff who are no longer physically able to do the job.

While employers and staff will often reach a mutual decision about the right time to retire, or reduce workloads, there can be issues when workers feel able to carry on and do not want to leave. Workers may insist they are still physically capable, but employers have a duty of care towards staff, so must ensure they are capable.

Employers need to be very careful not to expose themselves to a potential unfair dismissal complaint or discrimination claim when assessing this.

  • If no mutual agreement for exit can be reached, a formal route is to arrange for an independent medical examination which will show whether an individual is fit enough to carry on with the duties required by their role, or may recommend lighter duties or reduced hours.
  • The definition of disability under the Equality Act 2010 is very wide, covering all long-term conditions that affect the individual on a daily basis. Arthritis, a common condition in older manual workers, is likely to meet this definition and employers have a duty under section 20 of the Equality Act to consider what “reasonable adjustments” they could make to accommodate an individual’s disability needs, such as lighter duties or reduced hours. Failure to do so could result in a potential discrimination complaint.
  • The employer only has a duty to make adjustments that are reasonable. If the farm business cannot feasibly accommodate those changes to working conditions, then they can justify declining the request.
  • If an employee simply cannot perform the role they are employed to do for health reasons, there may be scope for dismissal on capability grounds, but there has to be a good business case and independent medical support behind the decision.
  • Seek legal advice before any discussion with the employee, particularly if there is a risk of an age or disability discrimination complaint.

Agricultural tenancies

If an agricultural worker gets a self-contained home as part of their job they may automatically have an ‘assured agricultural occupancy’. This won’t happen if they had a written notice at the start of the tenancy declaring it was an assured shorthold tenancy instead in the prescribed Form 9 (under the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015.

How it starts

An assured agricultural occupancy starts when the worker has been employed in agriculture (by any employer) for 91 weeks of the last 104, including paid holiday and sick leave, and:

  • The tenant works 35 hours or more a week;
  • The accommodation is owned by the farmer, or arranged by them.
Who can hold such a tenancy?

In addition to the most common arrangement whereby the farm worker is also the tenant, someone other than the worker may also become a tenant in specific circumstances, so the categories of persons below could also acquire this type of tenancy:

  • Farm manager or family worker;
  • Retired farm worker;
  • Farm worker forced to give up work;
  • Former farm worker who has taken up employment elsewhere;
  • Deceased farm worker’s widow, widower or family member of worker and were living with the worker when they died.
Ways to end the tenancy

If you want the property back because the worker is in breach of the agreement, or to accommodate another worker, then, whatever the reason, you will need to get an order for possession from the court and it would be unlawful to evict the worker without one.

You can only get an order for possession in certain circumstances, including if the worker:

  • Does not pay rent that is owed;
  • Breaks a condition of the tenancy;
  • Causes a nuisance;
  • Causes damage to the property.

Even if you obtain an order for possession against your worker/tenant, if the tenant is still a serving farm worker you may have to provide alternative accommodation.

When the employment ends

With this type of tenancy the former worker will not automatically be required to give up their accommodation.

If no, or little rent was payable while the tenant was a worker, you can now request the tenant pay rent, or a higher rent than before. If there is disagreement over how much rent is payable a rent assessment committee can be asked to determine the rent.

If you need the accommodation back for another worker you must either provide the tenant with alternative accommodation or ask the council to re-house them. Specific rights for agricultural workers in addition to all the rights contained within the ‘Employment Rights’ section of the DAS Employment Manual.

Agricultural wages

Workers are entitled to agricultural minimum wage dependant on their job grade and category. This varies between England, Wales and Scotland, as do overtime rates and holiday pay. You can find your workers entitlement on the following links:

A farm worker may also be entitled to agricultural sick pay which differs to that of statutory sick pay if they have been employed prior to 2013 and the contract states that they are entitled. These rates can be found in the government guidance.

For the most part, farm workers have rights equal to those in any other industry so this guidance just provides a quick overview of key points you need to be aware of when employing farm workers.

Need more help?

DAS UK customers have access to templates and guides on dasbusinesslaw.co.uk, including employment contract template and a number of other employment-related guides and templates.

You can access DAS Businesslaw by using the voucher code in your policy provider’s documentation.

Visit DAS Businesslaw Registration guide

Disclaimer: This information is for general guidance regarding rights and responsibilities and is not formal legal advice as no lawyer-client relationship has been created. Note that the information was accurate at the time of publication but laws may have since changed.

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