Guidance on Fixed Term Contracts by HC120915145934

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									Guidance on Fixed Term Contracts
The Fixed Term Employees (Prevention of Less Favourable Treatment)
Regulations 2002 came into force on 1 October 2002 to ensure that staff on
fixed term contracts are not treated less favourably than staff on similar
permanent contracts. In addition, the Regulations confirm that the expiry or
non-renewal of a fixed term contract is a dismissal in law.

The Employment Act 2002 (Dispute Resolution) Regulations 2004, came into
force on 1 October 2004 and set out a statutory minimum dismissal
procedure, which must be applied to all staff.

However, on 6 April 2009, the statutory procedures were repealed under the
Employment Act 2008 and from that time employment tribunals will consider if
the employer has followed their own procedures and the Acas code.

Although the mandatory 'three-step' processes for dismissal procedures were
repealed in April 2009, our policy still recommends that we follow the three-
stage process when ending any fixed term contract. Simplified, the required
process is as follows:
       Written invitation to consultation meeting
       Consultation
       The right to appeal

If an employer fails to follow their own policy the dismissal could automatically
be deemed as unfair and taken to tribunal.

If a contract is to cover someone on maternity leave or sickness absence and
the contract is finished when they return, the dismissal will normally be fair.

If there are grounds to extend the contract, but a decision is made not to for
some other reason (e.g. performance, attendance) there may be a claim for
unfair dismissal.

Statutory notice1 must be given in cases of early termination of a fixed term
contract prior to the original end date.

Guiding Principles

Under Fixed Term Employees (Prevention of Less Favourable Treatment)
Regulations 2002, employees have the following rights:

        Not to be treated less favourably than comparable permanent
         employees.

1
 after one month’s continuous service, but less than two years: one week’s notice
after two years continuous employment: two weeks’ notice if you have been continuously employed for two years




February 2012
      To have their contract made permanent if it is successively renewed for
       more than 4 years.
      To qualify for statutory redundancy payment if they have been
       employed for the necessary period.
      To receive information on permanent vacancies within the organisation.
      To receive a written statement from the employer with reasons for the
       dismissal.
      To receive Statutory Sick Pay.
      To receive notice of the intention to terminate the contract.
      To have access to occupational pension schemes.


Continuation of Fixed Term Contracts

Employees on a fixed term contract who accrue 4 years continuous service
are entitled to a permanent contract under the provision of the Fixed Term
Employees (Prevention of less favourable treatment Regulations 2002)

Procedure for Ending Fixed Term Contracts

This standard procedure should be followed in the case of all staff employed
on fixed term contracts that are about to end. Failure to do so could make the
dismissal unfair and lead to complaints being made through an employment
tribunal.

Fixed term contracts are set up for a genuine reason, and the employee
needs to be aware of the contract and the reason for it being fixed (e.g.
funding). At the expiry of the contract the employer needs to demonstrate that
the reason for it being fixed cannot be extended (e.g., funding has expired).

At least two months prior to the expiry of the contract, Headteachers/ Line
Managers are to advise employees whose contract cannot or is unlikely to be
extended why termination of their contract is being considered. If it is unsure
at this time whether the extension will be agreed, this process should still be
followed.

Headteachers/ Line Managers are to invite the employee to a meeting to
discuss these matters further. The meeting should consider any steps that
could be taken to extend the current contract or to seek alternative
employment. The expiry date of the current contract is also to be confirmed.
The employee has the right to be accompanied at this meeting.

Notes should be taken, with a copy kept on the employee’s personal file. A
follow up letter will include a summary of the discussion and any decisions
reached at the meeting and confirm the end date of the contract. It will also
include the right Representation and Appeal to the Governors Staffing Panel
regarding the ending of a fixed term contract. Sample letter can be found
below.



February 2012
After this meeting Headteachers/ Line Managers/ HR Officers are to continue
to offer assistance with redeployment, including issuing the Internal Vacancy
Bulletin right up to the date of expiry of the contract.

Appealing against a decision

An employee can appeal against a decision not to re-engage at the end of
fixed term contract. The appeal must be made in writing to the Headteacher/
Line Manager within 10 days of the written notice of the decision.


An appeal hearing, involving the staffing panel of governors (supported by a
Schools HR Officer) will be held as soon as practicable following receipt of the
appeal notice. Employees can be accompanied at this meeting.

The appeal hearing will involve the school’s case, the employee’s case and
summing up. The result of the appeal hearing must be notified in writing within
5 working days of the meeting.

Redundancy

Employees with two years continuous employment can claim a statutory
redundancy payment upon the ending of their employment if the reason for
the termination is the expiry of their fixed term contract due to reduction or
ceasing of work and they do not secure alternative
employment/redeployment.

Employees on a fixed term contract should not be selected for redundancy
purely because they are on a fixed-term contract. Redundancy must be
objectively justified at the end of the specific task for which the contract was
initiated. If there is more than one member of staff undertaking the type of
work that is to be reduced/ceased then all of these staff should be placed in a
selection pool and the school redundancy procedure applied.

Further information can be obtained from the Schools HR team.




February 2012
Ending Fixed Term Contracts




       Under 1 year                               Over 1 year continuous
     continuous local                               local government
    government service                                    service



                                 Employee in
                                 unique post
    Write and invite to a                                       Employee
   meeting to discuss end                                         not in
         of contract                                           unique post

                              Follow procedure but be
                              aware that there may be
                               redundancy payment
     Hold meeting and
  discuss any alternatives
                                                                  School
                                                                redundancy
                                                              procedure must
                                                                be followed
   If no alternative found
      write and inform of
    decision to terminate
       and give right of
     representation and
            appeal
                                                    Selection must not be
                                                      made due to fixed
                                                       term contract but
                                                     decision made with
  Hold appeal hearing and                             objective selection
    confirm decision in                              criteria applied to all
          writing                                         staff in pool




  Statutory notice must be
    given if terminating
   before the end of the
         fixed term



February 2012
Template letter confirming non-renewal of fixed term
contracts


Dear

Non Renewal of Fixed Term Contract

Further to our recent discussions, I am writing to confirm that your fixed term
contract of employment, which is due to end on ………………. 20… will not be
renewed on its expiry.

You do have the right to make representations to the Headteacher or
Redundancy Selection Panel against this decision and a representation
meeting will be held on …(date) ….. at (time). (please give a minimum of 5
days notice) You have the right to be accompanied by a work colleague or
trade union representative if you chose to make representations to the panel.

Please could you inform me in writing, by completing the second copy of this
letter (date) whether you will be attending the meeting. In the meantime, if
you need any clarification then please do not hesitate to contact me.

You also have the right of appeal to the governors.

I would like to thank you for all your hard work and ……….

If you require any further information or wish to discuss this matter with me
please contact me.


Yours sincerely


Headteacher



*I do/do not wish to make representations to the Redundancy Selection Panel
on (date)

Signed…………………………………………….
Dated………………………………..


*Please delete as appropriate



Copy to:      Union rep

February 2012

								
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