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GUIDELINES ON THE USE OF TEMPORARY CONTRACTS
(TEACHING STAFF)
AUTHOR: SCHOOLS CONSULTANCY
VERSION: 1.2
DATE: 01 NOVEMBER 2005
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GUIDELINES ON THE USE OF TEMPORARY CONTRACTS
(TEACHING STAFF)
1. INTRODUCTION
These guidelines should be read in conjunction with the Authority's guidelines on the
planned management of staffing and measures to avoid compulsory redundancy.
The use of temporary contracts provides flexibility to respond to fluctuations in the
need for staff. There are, however, certain considerations which should be borne in
mind. Governing Bodies need to understand clearly at the outset the full implications
of employing staff on temporary contracts.
The principles apply equally to ancillary staff.
2. EMPLOYMENT PROTECTION
Employment protection rights are established by virtue of the Employment Rights Act
1996.
All staff, whether temporary or permanent, full-time or part-time, can accrue rights to
protection against unfair dismissal and to redundancy payment dependent on the
length of continuous service.
Continuity is not broken when one employment contract immediately follows another
with the same employer, or even in some instances when there is a gap between
them. (See Section 6 below).
For the purpose of establishing continuity of service in respect of protection
against unfair dismissal all community, voluntary controlled, community
special, voluntary aided and foundation schools maintained by the Lancashire
Education Authority are classified as being the same employer, as is
employment with any other Directorate of the County Council.
Entitlement to a redundancy payment is established by continuous service not
just with the Education Authority and County Council but with any public sector
employer covered by the Redundancy Payments (Local government)
(Modification) Order 1983 as amended. (See Section 10 below).
A series of successive contracts at one or more schools will contribute towards
continuous service and may give employment protection rights irrespective of the
length of service at the current school.
Previous employment history should be set out on application forms and schools are
advised to check this, seeking verification from previous schools or the CSA as
necessary. (see Section 7 below).
Employment for one year establishes the right not to be unfairly dismissed and
employment for two years establishes the right to a redundancy payment if a dismissal
is for reason of redundancy.
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Dismissal occurs:
when a fixed term contract expires and is not renewed;
when an indefinite temporary contract is terminated;
when a contract to perform a specific task is terminated before the task is
complete.
The Employment Rights Act 1996 identifies five "fair" reasons for dismissal. These
are:
the capability or qualifications of the employee for performing work of the kind
employed by the employer to undertake;
the conduct of the employee;
redundancy;
the fact that the employee cannot continue to work in the position held without
contravention (either on the part of the employee or the employer) of a duty or
restriction imposed by or under a statutory enactment;
some other substantial reason of a kind such as to justify dismissal of an
employee holding the position which that employee held.
In the context of temporary contracts, most dismissals will fall into the "some other
substantial reason" category, unless redundancy is involved.
A fair reason for dismissal is only fair if the employer has:
dismissed for one of the above reasons;
done so following appropriate procedures;
ensured that the employee has had his appeal heard if he has chosen to
exercise his right of appeal.
(See Section 9).
3. DAILY SUPPLY
It is possible for teachers employed on a daily basis to build up sufficient service to
accrue employment protection rights. Clearly, where a teacher is employed on an
irregular basis, eg one day one week, no days for the next two weeks, two days the
following week etc, he/she would not normally build up any continuity of service.
There is a slight possibility, however, that even this irregular service could constitute a
regular pattern of work. This increases if there is a commitment to work for one
particular school. Where a school appoints a teacher on daily supply to cover
absence on sick leave or maternity leave and works a regular pattern of work for a
defined period, continuity of employment is much more likely to be established.
Governing Bodies need to consider what are the most appropriate contractual
arrangements to make in each particular circumstance. Where a teacher is covering
for another teacher who is absent for a reasonable period of time it might be more
appropriate to appoint a teacher on a temporary contract. This will mean, of course,
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that the teacher will be entitled to various aspects of conditions of service such as sick
pay.
4. TEMPORARY CONTRACTS (including end-dated contracts)
Temporary contracts may be used without the Governing Body knowing exactly when
the contract will end, and a fixed term contract may not therefore be applicable.
Under the provisions of the Burgundy Book, teachers employed for fewer than 4
months (ie one "Burgundy Book" term) should be paid on a daily basis rather than a
monthly paid contract.
For periods of at least one term or more, one of two types of temporary contract may
be used:
4.1. Indefinite contract
A Governing Body may not know precisely when the need for the temporary
appointment will cease eg covering for long-term sickness or maternity leave.
Where the reason for a temporary appointment is the absence of a permanent
member of staff, for example on maternity leave, long term sickness or
secondment, contracts may be offered on a term by term basis, with provision
for early termination of the contract on the return of the absent teacher. Such
contracts specify an end date (ie the end of term) but there is the possibility of
early termination should the absent teacher return before that date or the
possibility of future extension should the absent teacher not return to duty at
the start of the following term.
Alternatively, a contract may be offered for the expected duration of the
absence. In such circumstances, periods of less than a complete "Burgundy
Book" term should be paid on a daily basis if the teacher so requests.
Although temporary contracts may be used in the circumstances outlined
above, written notification of termination will be required to end them and
dismissal will occur when they are ended.
Such contracts may often not last long enough for the individual to acquire
unfair dismissal or redundancy payment rights, but this will not always be the
case and in any event employment protection rights may have already been
established by virtue of previous continuous service at other schools within the
CSA. Governing Bodies should therefore take care to see that any dismissal is
fair. In particular the contract should make clear the kind of circumstances
which will bring the contract to an end (eg the return of the permanent member
of staff). (See section 8 below and sample letter at Appendix A).
4.2. Contract to perform a specific task
Staff appointed to "one-off" jobs are sometimes engaged on a contract of
employment which lasts until the job is completed, without any date being
specified. No notice is required when the job is finished - it is said to be
"discharged by performance". There is no dismissal, and the employee cannot
therefore bring a claim to an Employment Tribunal for unfair dismissal or
redundancy pay. However, notice provisions should be included so that if
necessary the contract can be terminated before the job is finished - this will,
however, be a dismissal.
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A contract to be discharged by performance must have been entered into for a
defined specific purpose or task and be agreed by both employer and
employee. It would not be acceptable to an Employment Tribunal to use
specific task contracts to deny employees protection against unfair dismissal.
It is anticipated that this type of contract would not normally be used to any
significant extent in a school situation, however, such contracts are used by the
CSA for SSAs supporting named pupils with SEN statements. (Sample letter at
Appendix B).
5. FIXED TERM CONTRACTS
An employment contract is for a "fixed term" where it is for a specified stated period
which may be terminable by notice on either side before the expiry of the stated
period.
A fixed term contract must be for a maximum definite period and not for a stated
minimum period with provision for future extensions.
One reason for the use of a fixed term contract is the availability of finance.
It is advisable to include provisions to allow the contract to be terminated by either
party before it is due to end. Without such provisions if the contract is terminated
prematurely by the Governing Body, the employee may be able to claim for damages
for unpaid remuneration in respect of the rest of the contract. (Sample letter at
Appendix C).
It would not be acceptable to an Employment Tribunal to use a continuous series of
fixed term contracts to deny employees protection against unfair dismissal.
An appointment to a fixed term contract should only be made where that is a genuine
requirement of the post. Employment Tribunals will normally not recognise
employment as being fixed term, or a series of fixed terms, if in reality the contract is
indistinguishable from a contract of indefinite duration - even where described, and
accepted by an employee, as being for a fixed term.
Employment law provides that the expiry of a fixed term contract without the offer of a
further contract of employment is regarded as a dismissal. Accordingly, appropriate
dismissal procedures should be followed.
Where budgetary considerations are the reason for the non-renewal of a fixed term
contract the reason for the dismissal would be regarded as redundancy. (See Section
9 below). It should not, however, be assumed that the termination or non-renewal of
temporary contracts is an automatic course of action.
6. WAIVER CLAUSES
Employees appointed on fixed term contracts can be requested to waive their rights to
claim a redundancy payment but not their right to claim unfair dismissal. It is the
general policy of the CSA not to use waiver clauses and the CSA does not
advocate their use by schools. An Employment Tribunal is likely to disregard waiver
clauses used in order to deny a redundancy payment to someone who has already
accrued the right to one.
In circumstances where it is felt to be proper to use waiver clauses e.g. a specific fixed
term contract of known duration offered to someone without accrued employment
protection rights or to someone covering a secondment, the following principles apply:
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Waiver clauses may be used only in respect of fixed term contracts. Employment law
states employees can be requested to waive their right to bring a claim for redundancy
payment where the fixed term contract is for two years or more. The waiver is not
valid if the contract is terminated before that date. To continue to be effective, a
waiver must be renewed if a fixed term contract is extended.
Where a waiver operates, no claim is possible, regardless of how much continuous
service accrued prior to the signing of the waiver. Where, however, there is no valid
waiver, all continuous service is counted, not just the length of the final fixed term.
A valid waiver clause has the effect of breaking continuous service. The rights to a
redundancy payment would need to be re-established by subsequent continuous
employment. Therefore, where waiver clauses are to be used, the implications must
be discussed with the individual concerned prior to signing.
The cost of redundancy payments is met by the CSA unless there is good reason to
recharge a school's budget. Since the cost of such payments is not particularly high,
the avoidance of these payments does not constitute a good reason for waiver clauses
to be used.
An example of a waiver clause is given at Appendix 'D'.
7. RENEWAL OF TEMPORARY OR FIXED TERM CONTRACTS AND CONTINUITY OF
EMPLOYMENT
Technically, each temporary or fixed term contract is separate employment,
particularly where different schools are involved and each appointment was as a result
of an advertisement. An Employment Tribunal will, however, regard such employment
at any Lancashire maintained school as continuous for the purpose of establishing
rights to protection against unfair dismissal and/or entitlement to a redundancy
payment. This is irrespective of the period of employment at a particular institution
unless there has been a break in employment which is more than a temporary
cessation of work.
Temporary cessation of work
A gap between contracts may not break continuity if the individual has for any period
been absent from work on account of a temporary cessation of work i.e. holidays and
school closures. The relative lengths of the gap(s) and surrounding length of
continuous employment, including daily paid supply work, are taken into account by
Employment Tribunals when determining whether a temporary cessation has
occurred.
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8. PROCEDURE RELATING TO APPOINTMENTS AND RENEWALS/ EXTENSIONS
OF TEMPORARY/FIXED TERM CONTRACTS
The steps which should be taken in respect of each temporary and fixed term contract,
regardless of the reason for the appointment or its expected duration are as follows:
The reason for the temporary/fixed term nature of the appointment should be made
explicit in the advertisement and further particulars and be explained to the individual
when the post is offered. The written offer should confirm the reason for the
temporary/fixed term nature of the appointment.
The offer of employment must be expressed in writing as temporary or fixed term. For
indefinite temporary contracts an estimate must be given of the likely duration of the
appointment and it should be made clear what circumstances will bring the contract to
an end (eg return of a permanent member of staff; the filling of the post on a
permanent basis). The dismissal of a temporary replacement for an employee who is
absent and then returns is likely to be regarded as a fair dismissal under employment
protection legislation provided that the reason for the absence and the fact that the
temporary contract will terminate on the return of the absent employee has been made
clear and formal procedures to terminate the contract take place. For fixed term
contracts an end date must be specified.
The offer should be accepted by the teacher in writing as temporary, or for the stated
fixed term.
If it is intended to include waiver clauses in a fixed term contract this should be done in
the initial offer letter.
The written statement of particulars under the Employment Rights Act 1996 should
confirm that it is a temporary/fixed term appointment.
Steps 1-5 should be followed for any subsequent offer/acceptance of renewal or
change of contract, whether the reason for the temporary/fixed term contract changes
or not.
Once a member of staff has held a temporary contract for more than one year, the
reason for the temporary nature of the contract should be examined. It is not normally
good employment practice to continue to offer temporary contracts beyond a one year
period. If, however, the contract is to cover the absence of a permanent member of
staff, the continuation of the temporary contract would be appropriate. Should the
post be a temporary addition to the establishment, consideration should be given to
the offering of a permanent contract on either a full time, part time on variable hours
basis (see Section 12).
9. WHAT TO DO WHEN A TEMPORARY/FIXED TERM EMPLOYMENT CONTRACT
ENDS
The fact that a contract is temporary does not remove the legal obligation to follow the
procedures which would accompany the termination of a permanent contract. The
following of fair procedures reduces the likelihood of a claim of unfair dismissal. (See
Section 2).
Schedules 16 (community, voluntary controlled and community special schools) and
17 (voluntary aided and foundation schools) of the School Standards and Framework
Act 1998 provide that in all schools the following rights should be afforded to anyone
with at least one year's continuous service.
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"Before making a decision that a person employed to work at the school should have
his contract of employment terminated or should not have that contract renewed, the
Governing Body shall -
make arrangements for giving that person an opportunity of making representations
as to the action they propose to take (including, if he so wishes, oral representations
to such person or persons as the Governing Body may appoint for the purpose), and
have regard to any representations made by him.
The Governing Body shall also make arrangements for giving any person in respect of
whom they have made such a decision an opportunity of appealing against the
decision before they give effect to it."
9.1. Procedure for termination of temporary contracts (WHETHER OR NOT
EMPLOYMENT PROTECTION RIGHTS HAVE BEEN ESTABLISHED) (See
principles at Appendix F) (in cases of redundancy see paragraph 9.3)
As soon as it is known that the contract will be terminated because of the return
of the permanent member of staff or the filling of the post on a permanent
basis, the teacher should be provided with a written statement setting out the
reason for the proposed termination of the contract and the right to make
representations, including oral representations as indicated above.
A model letter of reasons for the termination of a temporary contract is
set out at Appendix E.
The reason for the termination of a temporary contract will usually be the
reason for the employment being temporary in the first instance e.g. return of a
teacher from long term sickness (except in cases of misconduct or
incompetence). In the case of the expiry of a fixed term contract without its
renewal, the reason for dismissal is likely to be regarded by an Employment
Tribunal as redundancy.
Where the member of staff submits written representations, these should be
considered by the governing body in accordance with the principles and
procedure set out at Appendix F.
The principles and procedure at Appendix F should be followed in all cases
where the member of staff requests a hearing. Governing Bodies of Schools
with full delegation are responsible for their own procedures. The principles
given at Appendix `F' have been drawn from the CSAs model procedure for
discipline, suspension and dismissal and as such may differ in voluntary aided
and foundation schools, particularly in respect of appeals/review arrangements.
If the termination of the temporary contract is confirmed, Notification of
Termination form NOT(T) should be completed and submitted to the CSA in the
normal way together with a copy of the letter setting out the reasons for
termination.
Notice provisions, where these apply, should be honoured. (See Section 9.5).
Vacant post filled on a temporary basis pending a permanent appointment
Where a temporary appointment has been made because the permanent
postholder is unable to take up the appointment for a period of time a formal
procedure should be followed before the temporary appointment is terminated.
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Where a temporary teacher has been appointed before steps have been taken
to fill the vacant post on a permanent basis, the temporary teacher does not
have a right to the post but should be given the opportunity to apply. If not
appointed or if unwilling to be considered for a post the formal procedure
should be followed, but in the latter case this must be done before the
permanent appointment is confirmed.
Note
Under Schedules 16 and 17 School Standards and Framework Act 1998, the
Governing Body of a school with full delegation may, without advertising,
appoint to a teaching post a person who is already employed to work at the
school.
9.2. Dismissal on grounds of misconduct/incompetence
The normal disciplinary procedures should be applied where it is necessary to
dismiss a teacher before a temporary/fixed term contract is due to end because
of misconduct, incompetence, etc.
9.3. Redundancy - Consultation with the recognised trade unions
The Authority's Guidelines on the Management of Staffing contain
detailed procedural advice in respect of redundancies. See Section 5 of
that document.
Consultation with recognised trade unions is legally required where there is a
dismissal and the reason for the dismissal is redundancy i.e. there will be a
reduction in staffing after the due date of expiry of a temporary/fixed term
contract.
It is not possible simply to dismiss those teachers who do not have sufficient
continuous service to afford them protection against unfair dismissal or to
entitle them to a redundancy payment.
There will be situations where a school anticipates a significant fall in pupil
numbers at the end of the next academic year, but needs to make a temporary
appointment until that time. In such circumstances a temporary contract could
be offered with the reason for the contract being "the anticipated reduction in
pupil numbers from September ______". It would still be necessary to carry out
a redundancy consultation exercise, but this would be linked to the post in
question and would not affect the remainder of the staff at the school.
It is irrelevant that none of the teachers on temporary/fixed term contracts
may have enough service to qualify for a redundancy payment nor that
some or all of them may not be in a union. The use of temporary
contracts is not a means of avoiding redundancy procedures.
If the consultation about proposed redundancies as required by the law does
not take place, the employer can be taken to an Employment Tribunal, resulting
in a greater award of compensation being made.
In schools with full delegation, the Governing Body is responsible for such
consultation.
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9.4. Alternative employment for temporary employees
Before a contract comes to an end, the possibility of alternative employment
within the school should be explored and the CSA should be consulted
regarding the possibility of alternative employment elsewhere.
9.5. Notice of termination given by the employer
Contractual notice i.e. the 2 or 3 months specified in the Burgundy Book, is
required only in cases of redundancy or when a teacher is being dismissed on
grounds of ill health. Contractual notice is not required where an indefinite
contract, fixed term contract or specific task contract is terminated in
accordance with the original terms of the contract.
9.6. Offers of alternative employment and the inclusion of waivers
If alternative work is available an offer should be made prior to the ending of
the existing contract. This is especially important where there would otherwise
be a liability to make a redundancy payment. If the offer is accepted the new
employment should begin not more than 4 weeks after the ending of the
previous contract, otherwise a redundancy payment will be payable.
A fixed term contract as alternative employment for a employee who has
established employment protection rights will seldom be regarded as
reasonable by an Employment Tribunal if it includes a waiver clause. It should
be borne in mind that the service which results in the establishment of rights to
protection against unfair dismissal or the right to redundancy payment may
have been accrued at other institutions.
The cost of redundancy payments is met by the CSA unless there is good
reason to recharge a school's budget and, therefore, schools do not need to
use waiver clauses.
10. REDUNDANCY PAY
The entitlement to redundancy pay is calculated on all continuous public sector
service, i.e. service with this or any other Education Authority, former grant maintained
school, Local Authority, University, Polytechnic or College, or any one of almost 100
public sector employers as diverse as The Sports Council and the Forth Road Bridge
Joint Board. Under the provisions of the Redundancy Payments (Local Government)
(Modification) Order 1983 (as amended) a teacher may be entitled to redundancy pay
calculated on a number of years' service, even if redundancy arises only on the expiry
of a comparatively short final fixed term contract.
A list of employers covered by the Order is given at Appendix G.
An Employment Tribunal may consider it unreasonable to deprive an employee of
accrued rights to redundancy pay by the use of a waiver of clause in the absence of
prior explanation by the employer of the effects thereof. In such circumstances the
implications of signing a waiver clause is a point which should be discussed and
agreed with the teacher before a fixed term contract is offered to someone with
previous continuous public sector service. (See 9.6).
11. EMPLOYMENT TRIBUNALS
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When assessing whether a teacher has established rights to protection from unfair
dismissal or rights to redundancy pay by virtue of length of continuous service an
Employment Tribunal would take into consideration factors such as:-
11.1. Unfair dismissal : whether the teacher had other service with the maintaining
authority.
11.2. Redundancy : whether the teacher had service with other public bodies and the
maintaining authority.
11.3. If there were gaps between such periods of service, whether these were on
account of a temporary cessation of work and if so what the length of gap(s)
was in relation to the total length of service.
11.4. Whether any waiver clauses had been used and if so their effect and validity.
Headteachers and Governing Bodies are strongly advised to consider such
factors in advance of any offer or termination of temporary employment and to
seek the advice of the CSA via the Area Personnel Team where necessary.
12. VARIATIONS IN HOURS - VARIABLE HOURS CONTRACTS
Many part time contracts are renewed on an annual basis, often with variations in
hours. Once an employee has gained employment protection rights, any variation
should take place only with the agreement of the teacher concerned. To do otherwise
could be regarded by an Employment Tribunal as a dismissal and potentially as
redundancy. In order to make a claim of unfair dismissal and/or redundancy, the
teacher would have to resign and claim constructive dismissal.
In order to retain flexibility, consideration should be given to the use of variable hours
contracts, which may be either temporary or permanent.
A variable hours contract may be used where flexibility is a requirement of the post.
Such contracts should set out the parameters within which the hours could fluctuate
but the upper limits must not be less than full-time. This is to avoid potential claims of
indirect discrimination on grounds of sex which could arise if variable hours clauses
were applied only to part-time contracts, since the majority of part-time staff are
women.
The lower limit (which cannot be nil) in terms of hours per week/proportion of full-time
should be established and this limit cannot be reduced without the agreement of the
employee. Above that limit, however, hours can be varied on a termly or an annual
basis based on budgetary considerations and/or pupil numbers (depending on the
wording of the contract).
Whilst it is good practice to notify the individual in advance of any proposed variation
in hours, their agreement to the variation is not necessary.
13. TEMPORARY/ACTING ALLOWANCES/DISCRETIONARY PAYMENTS
The award of responsibility points or other discretionary payments on a temporary
basis should be in accordance with the principles set out in Section 8 above.
As much notice as possible should be given, in writing, of the termination of any
temporary responsibility point or other payment. It should be noted that some
incremental enhancements have to be reviewed each 1st September and at any other
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time when the teacher receives an increment and there should be no expectation that
the additional payment will continue beyond that date.
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14. AUTHORITY COSTS ARISING FROM THE ACTIONS OF GOVERNING BODIES
Under Fair Funding and the School Standards and Framework Act any redundancy
payment or Employment Tribunal costs will be met by the Authority and will not be
recharged to a school's budget share unless the Authority has good reason for
deducting those costs or expenses (or part thereof). In determining whether or not to
deduct costs or expenses the merits of each case will be examined. The Authority will
examine whether appropriate and fair procedures have been followed and whether
guidance and advice proffered by the Authority has been taken into account.
BS/SP/SMS/JKB/AL/WR
27 June 2011
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