Prohibitions on Temporary Staffing and the Employer's Scope of Discretion: The Specialist Exception
Following the implementation of significant restrictions on the ability to hire personnel from staffing enterprises, the scope of discretion available to employers in terms of temporary staffing has become a central issue. One important exception to the prohibition against temporary staffing is found in the so-called specialist exception.
According to the regulations under the Working Environment Act, an exemption exists for hiring workers with specialised skills to perform advisory or consultancy services within a clearly defined project.
The provision sets out three criteria that must be met in order to lawfully hire staff under the specialist exemption. All criteria must be fulfilled for the temporary staffing to be lawful, but the assessment of whether temporary staffing under the specialist exemption is lawful depends also on an overall evaluation.
1. Requirement for Specialist Competence
Firstly, it is a condition that the worker must possess specialised competence. This means that the worker being hired must have specialised knowledge or expertise in a given field. Specialised competence can be acquired both through education and experience. Additionally, the specialised competence must be something the hiring enterprise needs for a limited period, which the enterprise itself is not expected to possess, and which is not required for the day-to-day operations of the enterprise.
Central to this assessment will be whether the temporarily hired worker contributes something more or different, due to their expertise/experience, compared to what the hiring enterprise’s own employees typically perform.
2. The Exception Applies to Advisory and Consultancy Services
It is a further requirement that temporary hiring under the specialist exception must relate to advisory or consultancy services. The assessment here relates to the type of work that the temporarily hired worker will perform and/or the type of service the staffing enterprise is to provide to the hiring party. The regulation defines advisory and consultancy services as ‘the provision of specialised knowledge and advice within a specific field.’
Typical examples of professional domains where advisory and consultancy services are provided include ICT, technology, engineering, business consulting/organisational development, legal practice, audit and taxation, architecture, advertising and media consultancy services, HR and recruitment, market analysis and opinion polls, design and communication.
3. The Exception Applies to a Clearly Defined Project
The use of the specialist exception requires that the need for temporary staff must relate to a clearly defined project. This means that the work carried out by the temporary staff must be distinct from the enterprise’s regular operations and/or ongoing tasks and must be a time-limited work assignment.
A work stoppage within regular operations would not be considered a ‘clearly defined project.’ It is not a condition that the hiring enterprise cannot have its own employees with the same professional background as the one being hired. With regard to the time-limitation requirement, the key consideration here is whether the work has a natural conclusion, for example in the form of a report, reorganisation, or the implementation of a new digital tool, etc.
It should also be noted that if temporary staff have been employed continuously for more than three years, they are entitled to permanent employment with the hiring enterprise.
The hiring enterprise is required to document the basis for employing temporary staff under the specialist exception when so requested by union representatives.