The Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 came into force in October 2002.

 This legislation provides important rights for fixed-term/temporary employees which have an impact on the use of fixed term/temporary contracts, with the key principles being:

  ·        to protect employees engaged on fixed-term/ temporary contracts from being treated any less favourably than a comparable employee on an indefinite (i.e. permanent) contract.
  ·        to prevent the potential abuse of employees through the continuous use of such contracts, by limiting these to no more than 4 years, after which a fixed-term/temporary contract should become permanent, unless there is a justifiable objective reason for it continuing on a fixed-term basis, 
 ·        to ensure that fixed-term/temporary employees have access to information regarding vacancies within the Council.   The regulations are not however designed to prevent employers and employees entering into fixed-term/ temporary working arrangements, and the following guidance has therefore been produced to clarify the principles of offering and ending fixed-term/temporary work for employees, and to outline the process which should be followed when doing so. All Managers, Headteachers, and Governing Bodies should ensure they are aware of this guidance when making fixed-term/ temporary appointments. (You can find more detailed information on who is covered and the specific rights provided by the regulations at Appendix 1).               

 2.       ROLES AND RESPONSIBILITIES  
 
       
 Responsibilities of Managers/Headteachers: 

 To be aware of their responsibilities as determined by the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002.
To ensure fixed-term/temporary employees are treated no less favourably than comparable permanent employees, unless there is an objective justification for doing so.
To ensure there is a justifiable and demonstrable reason for appointing to a post on a fixed-term/temporary basis, and that this is fully explained during the recruitment process and in any subsequent correspondence relating to the post/contract.
To ensure that all fixed-term/temporary employees understand the nature of their contracts, and are consistently advised as to the likelihood of extension/ renewal, and reasons for this, within the appropriate timescales
.To liaise with employees, appropriate Trade Union representatives and relevant Human Resources Advisor/Provider as appropriate, regarding formal procedures and hearing arrangements.
To provide written statements as may be required/ requested by the employee, confirming the status of the fixed-term/temporary contract, and reasons for any perceived less favourable treatment or the ending of a Fixed-Term/Temporary contract.
To ensure the three-step process outlined below is followed when ceasing or failing to renew a fixed-term/temporary contract. 

 Responsibilities of Human Resources: 

 To assist Managers/Headteachers/Governors by providing advice and guidance as necessary in relation to all aspects of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002.To review policy and procedure as appropriate to ensure all advice and guidance is relevant and timely. 

 Responsibilities of Employee:  

To comply with the procedures as outlined below.
To ensure they have a clear understanding of the fixed-term/temporary nature of their employment, and reasons for this.
To have no expectations that their employment will be extended, unless they receive formal clarification of this.
To raise any issues relating to their fixed-term or temporary employment, and any perceived less favourable treatment, with their Manager/ Headteacher at the earliest opportunity, noting their right to Trade Union representation in such discussions.
To attend meetings/hearings as necessary in connection with their fixed-term/temporary contract, noting their right to Trade Union representation at any such meetings/hearings.                        


A contract of employment which:   Is made for a specific term, which is fixed in advance, or   terminates on the completion of a specified task, or   terminates on the occurrence or non-occurrence of any other specified event (e.g. the cessation of external funding, or where it is known in advance that pupil roll numbers will fall on a specific date etc).                

WHEN CAN A FIXED-TERM/ TEMPORARY CONTRACT BE OFFERED?
 
 There must be a clearly justified reason for offering a post on a fixed-term/temporary basis, as opposed to permanently. In each case there should be a clearly demonstrable business/service reason as to why a permanent appointment cannot be made.   Acceptable examples of fixed-term/temporary work include:   Cover for maternity leave, parental leave, long-term absence, or secondment of a permanent employee, or cover for a vacancy while recruitment for a permanent replacement is undertaken.   Where continuation of the work to be carried out is dependent on the availability of future funding, and/or where there is no reasonably foreseeable prospect of either short-term funding being renewed, or other external or internal funding becoming available (in cases where perceived short-term funding for the post has already been renewed at least once, continued use of the fixed-term/temporary contract would need to be reasonably justified).   Contracts that expire when a specific task is complete - for example a task-based contract where the employee is required to undertake a defined task, or set of tasks, such as managing a project.   Where extra cover is required to support peaks in demand or workload - for example employees appointed to support increased workload caused by local elections etc, or employees appointed by a school specifically during examination periods.   Contracted seasonal work involving a short period and/or task which ends when the period expires and/or the task is complete.   The reason for the fixed-term/temporary contract and the circumstances that will bring the contract to an end should be made clear to an employee throughout the recruitment process, and at regular intervals throughout the duration of their contract.         

WHEN IS IT INAPPROPRIATE TO USE A FIXED-TERM/TEMPORARY CONTRACT? 
 
 Fixed-Term/Temporary Contracts must not be used:   To test an employee's capability to perform effectively, as probationary periods are designed to encompass such situations. In instances where probationary periods do not apply, the appropriate Performance in Employment (Capability) Procedure should be used.   To fill an already existing permanent post/vacancy on a current structure, except in cases where that post is due to be deleted within a defined time frame (i.e. due to restructuring/re-organisation etc).

 Filling a vacancy which a fixed-term/temporary employee is covering.
        
 Should a post already be filled on a fixed-term/temporary basis, and it subsequently become possible to fill that post on a permanent basis, the present (fixed-term/temporary) post-holder should normally be offered a permanent contract automatically in the event that:   they have 12 months or more continuous service, and   they were subject to an appropriate recruitment process (including a competitive interview) for that specific post at the outset.   prior to slotting, consultation has taken place with the relevant Trade Union and Directorate Human Resources Advisor/School HR Provider to ensure an assessment has been undertaken to determine a legitimate right to the post, in accordance with the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002.   Otherwise the post should be advertised in accordance with normal recruitment procedures. The manager should meet with the fixed-term/temporary employee to inform them that the post is due to be advertised, and if they are subsequently unsuccessful at interview, the three stage dismissal procedure outlined below should be followed.        

 When is a non-renewal/ termination deemed to be fair?    
                             
  The reason for non-renewal/termination of the contract should be determined according to the facts of each individual case.   It is normally seen as fair to not renew a fixed-term/ temporary contract when:   That contract was for a specific purpose, and this purpose has concluded.The reason for the fixed-term/temporary nature of the contract was clearly stated throughout the recruitment process.All recruitment/contract documentation clearly stated the fixed-term/temporary nature of the contract.Contractual notice of the end of the employment contract is served within the appropriate timescale (e.g. for a non-teaching employee with 6 years of continuous service, it would be necessary to give 6 weeks notice of the end of their contract).The three-stage process outlined below has been implemented fully and in good time prior to the end of the contract.A fixed-term/temporary contract ends and is not renewed for the exact same reason stated in the contract.There was no reasonable expectation of the employment continuing beyond its end date.   

Termination and non-renewal of fixed-term/ temporary contracts.  

 When a fixed-term/temporary contract terminates and is not renewed, the Employment Rights Act 1996 confirms that this constitutes a dismissal. In such cases, the Employment Act 2002 states that the following three stage statutory dismissal process must be followed: 

 Stage 1: Notification 

 The Manager/Headteacher should notify the employee that their fixed-term/temporary contract is coming to an end and that they will arrange for a Statutory Dismissal Hearing to be held to determine whether their employment should be terminated. This should be confirmed in writing, having due regards to appropriate notice periods as set out in the employment contract.   (An example notification letter can be found at Appendix 2). 

 Stage 2: Statutory Dismissal Meeting 
 
The Manager/Headteacher should arrange a meeting in order to discuss the reasons for non-renewal/termination of the contract. The statutory dismissal meeting will be chaired by the Executive Director/Assistant Director (non-schools) or Governing Body Committee (schools), with advice from the HR provider. The meeting should be held prior to the contractual notice deadline. The employee should be given a minimum of 5 working days notice of this meeting, and has the right to be accompanied or represented at the meeting by a Trade Union or Professional Association Representative or work colleague. The employee should at this meeting make a formal representation against the non-renewal/termination of their contract, while any available/viable alternative employment opportunities may also be explored.   Should the employee prefer not to have a meeting, they can choose not to attend. However the meeting should still take place to ensure that a determination is made on their employment. Should the employee wish to submit a written representation to be considered at the meeting, they may do so. This information will be considered by the panel before making a decision.   After the meeting has been held, the decision should be communicated in writing to the employee, who then has a right of appeal.   (An example representation outcome confirmation letter can be found at Appendix 3).

  Stage 3: Appeal Hearing  

The employee has the right of appeal against the non-renewal/termination of their contract (should their initial representation - at Stage 2 above - be rejected by the panel). The appeal should be lodged within 14 days of receiving formal written confirmation of the outcome of the dismissal meeting. For non-school employees, appeals will be heard by Elected Members of the Council. For school employees, appeals will be heard the Governing Body's Appeals Committee).   (An example appeal confirmation letter can be found at Appendix 4).   Whenever you are considering not-renewing/ terminating a fixed-term/temporary contract, you are advised to discuss this with your Directorate HR Advisor/School HR Provider.                

REDUNDANCY PAYMENT SCHEME  

Statutory entitlements to redundancy pay are calculated in accordance with the Employment Rights Act 1996 and the Redundancy Payments (Continuity of Employment in Local Government) Order 1999.   Any employee who is dismissed by reason of the non-renewal/termination of their fixed-term/temporary contract will be entitled to a redundancy payment, providing they have at least 2 years continuous service with the Council or related employers as listed under the Redundancy Payments (Continuity of Employment in Local Government) Order 1999.   Should an employee be entitled to a redundancy payment, their notice of termination will be in accordance with their contractual notice entitlement.   Council's Redundancy Scheme   For details of the redundancy payment please see the Redundancy Payments Scheme available on the HR intranet site.

 COMPLETION OF DOCUMENTATION FOLLOWING CONCLUSION OF STATUTORY DISMISSAL PROCESS
  
  Following conclusion of the statutory dismissal process, Managers/Headteachers must ensure that all necessary documentation has been completed and forwarded to Business Support Services for processing.   Documentation to be forwarded to the BSS (Finance & Property) section:   Termination Form (TERM1) - used for all employees who leave the employ of the Council.   Variation to Contract Form (VC1) - used for all employees who have been subject to any contractual change (i.e. the extension of a fixed-term/temporary contract etc).
       
   IMPACT ASSESSMENT 
 This policy has been impact assessed by Human Resources. If on reading this policy/procedure you feel there are any equality and diversity issues, please contact your Directorate HR Advisor who will, if necessary, ensure the policy/procedure is reviewed.  
      
  INCOME TAX AND NATIONAL INSURANCE IMPLICATIONS  

There are no income tax and national insurance implications arising as a result of this procedure.           

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