THE NEW FIXED TERM EMPLOYEES REGULATIONS

 

 

A synopsis of the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 which came into force on 1st October, 2002

 

 

These Regulations radically alter the management and use of fixed term, temporary and casual contracts of employment.  In cases of unfair treatment under the Regulations, Employment Tribunals will normally award compensation by determining a monetary amount which is not limited by the Regulations.

 

1.      Definition

 

A "fixed term" contract is now defined as:

 

·        a contract for a specific term which is fixed in advance;

·        a contract which terminates on completion of a particular task or upon the occurrence or non-occurrence of a particular event.          

 

This definition covers the existing fixed term, temporary and casual contracts but excludes "agency " staff.  A European Directive is being formulated in respect of the treatment of agency workers.                        

 

2.      The Key Features

                     

·        Employees on fixed term contracts have the right not to be treated less favourably than a comparable permanent employee unless that treatment can be justified on objective grounds.

·        The use of successive fixed term contracts will be limited to a maximum period of 4 years unless their use for a longer period can be objectively justified.

·        Employers will be required to inform fixed term employees of permanent vacancies, with the aim of improving their access to permanent employment.

·        Only continuous service after 10th July, 2002 will count towards the 4-year mark.

 

3.   The Comparator

 

A fixed term employee can only compare his/herself with a permanent employee if, at the time of the alleged treatment, both employees are:

 

·         employed at the same establishment, and

·         engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification and skills, and

·         the comparator works or is based at the same establishment as the fixed term employee or, if there is no comparator at the establishment, works or is based at a different establishment operated by the same employer (i.e. comparing one school with another).

 

 

 

4.      The "Duties" test

 

This appears to be similar to that adopted by the Equal Pay Act and the Part time Employees regulations.  If this proves to be the case, it will be necessary for an applicant to an Employment Tribunal to demonstrate that their duties are the same or broadly similar to the Comparator, although in practice it is more likely to be the employer that provides the evidence as objective justification for the differences. The evidence will have to demonstrate a material difference.

 

5.      Less Favourable Treatment

 

This treatment can be:

 

·            the terms of the contract

·            the actions or non-actions of the employer

·            pay

·            pension

·            service qualifications

·            training opportunities

·            opportunities for permanent employment.

 

6.      Ending Fixed Term Contracts

 

Prior to the introduction of these regulations, the ending of a fixed term or temporary contract by predetermined circumstances did not amount to dismissal; it was ended by the performance of the contract.  However, the regulations define the ending of the "new" fixed term contracts as a dismissal and therefore give the right of redress in law to any such employee.

 

7.      Rights of Fixed Term Employees

 

All such employees who seek to be informed of any perceived differences between their employment details and a comparator is entitled to a written response on behalf of the LEA or Governing Body within 21 days of a written request.  Any such request should be referred to the Education Personnel Services to arrange for a suitable response.  In addition, all such employees are entitled to be informed of all vacancies for permanent employment.

 

8.   Future use of Fixed Term Contracts

 

A schedule is attached giving the recommended framework for future use of fixed term contracts.

 

 

 

 

 

 

 

 

 

 

FRAMEWORK FOR THE FUTURE USE OF FIXED TERM CONTRACTS

 

 

       Circumstances                                        Entry in the Contract

 

 

To cover Maternity Leave             For a fixed term/ temporary period   

                                                                of (estimated)  --------------  during

                                                                 the maternity leave of (job title).

 

To cover Sick Leave                   For a temporary period of

                                                                (estimated)---------- during the

                                                                absence of (job title).

 

To cover Secondment                            For a fixed term of-----------------

                                                                during the secondment of (job title).

                                                                In the event of the secondment

                                                                 being foreshortened, this

                                                                 employment will cease, on a

                                                             month's notice, on the return to      

                                                                duty of the post holder.

                                                               

To cover a Vacancy                               For a fixed Term/Temporary period

                                                               (estimated) of----------- whilst the

                                                          post is vacant.

 

To cover temporary  increase                  For a fixed term/ temporary period                                                     

in numbers/ work load/                             of (estimated) to assist with (state

suspension of staff                                   reason). Employment will cease on

                                                                 one week's notice at the discretion

                                                                 of the employer.

 

To assist /manage a specific                   For a temporary period of          

project                                    (estimated) to  support/manage

                                                                The ------------------ project. The

                                                                Employment will cease at the

                                                           conclusion of the project.  

 

To assist/manage                          For a fixed term of ------------ whilst                                                                 

With external funding                               the employment is funded by-------

                                                                In the event of the funding ceasing

                                                                or diminishing this employment will

                                                               be concluded by a week/month's

                                                        notice.

 

 

 

 

 

 

Fixed Term or Temporary Contracts should not be used for:

 

·        Assessing an individual's performance.  A probationary/induction period should be used for this purpose.

 

·        Pending organisational change/ restructuring when the date of change has not been determined.

 

·        Pending a review of staffing when this is not related to a temporary increase in workload.

 

Choosing fixed term employees in view of their contract for redundancy in advance of permanent employees is probably less favourable treatment.  Great care should be taken in identifying the period of the fixed term and may help to resolve this problematic area. 

 

In all cases, the contract should indicate that staff are able to apply for permanent employment and where the opportunities will be displayed, e.g. Notice Boards, Staff room, Press etc.  Great care to be taken over this provision during reorganisations when special consideration will be given to the particular circumstances.  Mention should be made of the search for suitable alternative employment.    

 

 

 

 

 

February 2003