Policy type: Public Health Wales Wide
Policy reference number: (to be obtained from the Policy Co-ordinator)
Policy classification: HR
Author:Human Resources
Policy lead: Human Resources
Executive lead: Ruth Davies, Director of Workforce and OD
Date:23 January 2012 / Version:
Publication/ Distribution:
- Public (Internet)
- NHS Wales (Intranet)
- Public Health Wales (Intranet)
Review Date: January 2014
Approval date:
Approving body: Board
Purpose and Summary of Document:
In law, when a fixed term contract expires and is not renewed, it is considered to be a dismissal. Staff with at least one year’s service (i.e. 51 weeks service at the date contract is due to end) has the right to a written statement of reasons for this dismissal and the right not to be unfairly dismissed.
In accordance with employment legislation Public Health Wales are requiredto follow a standard procedure for dismissals, including the non renewal of a fixed term contract.
Intended audience: All staff
Interdependencies with other policies:
Standards for Health Services in Wales:
PUBLIC HEALTH WALES
PROCEDURE FOR MANAGING THE EXPIRY OF FIXED TERM CONTRACTS
1.Background
In law, when a fixedterm contract expires and is not renewed, it is considered to be a dismissal. Staff with at least one year’s service (i.e. 51 weeks service at the date contract is due to end) has the right to a written statement of reasons for this dismissal and the right not to be unfairly dismissed.
In accordance with employment legislation Public Health Wales are requiredto follow a standard procedure for dismissals, including the nonrenewal of a fixed term contract.
A fixed term contract should only be terminated if there is no longer a requirement for that particular job to be done. This will normally arise as the result of the funding running out, or a cessation or reduction of an activity. Non renewal of fixed term contracts must not be used as a substitute for goodperformance management and effective probationary procedures.
Where a fixed term contract expires without being renewed, Public Health Wales, subject to the terms of the Redundancy Payments Scheme (see section 9 below), will make a statutory redundancy payment to the member of staff.
2.Redundancy
As stated above, when a fixed term contract terminates and is not renewed, the employee isdismissed. The reason for this dismissal will not always be redundancy (the requirement to carry out work of a particular type has ceased or diminished), as this will depend on thecircumstances of the case. For example if the fixed term employee had been covering for an absentmember of permanent staff, then this would not be a redundancy situation.
Where a post is redundant, the fixed term employee should not be selected for redundancy purelybecause they are on a fixed term contract, unless this is objectively justified. For example, where thefixed term employee has been brought in specifically to complete a particular task or to cover for apeak in demand, it is likely that selecting that employee for redundancy at the end of their contractcould be objectively justified.
If Public Health Wales has a number of employees who are employed in a similar capacity(whether fixed term or permanent) or a number of fixed term contracts due to expire at the same time,and there is a requirement only to retain some of the staff, the case must be referred to HR as soonas possible and before taking any action to end a contract.
3.The Administrative Arrangements
Public Health Walesemploys a significant number of fixed term employees and ensuring that we haveprocedures in place which comply with our legal obligations can be a sizeable and difficult task. Thearrangements described here are designed to provide meaningful and practical help and to minimisethe burden on departments to manage such issues.
The HR Department will operate a reminder system whereby departmental managers are advised on a monthly basis ofall fixed term contracts which are due to expire in the coming 6 months.
In advance of the employee’s contractual notice period and in accordance with the fixed term contract expiry date (unless HR have already been advised that the contract will be extended ormade permanent) the HR Officer will write to the employee advising them that of the date on which their fixed term contract is due toexpire. Our legal obligations require us to do this even though we know that many contracts are extended or made permanent. However by writing to all fixed term employee’s whose contracts are due to expire, it ensure the process is adhered to. This letter is copied to the employee’s line manager.
4.What are the Line Managers Responsibilities?
Line managerswho employ fixed term staff should ensure that they are aware of the arrangements contained in this procedure and know which HR Officer within the HR Department has responsibility for administering the procedures.
Public Health Wales has a legal obligation to consult with each fixed term employeeprior to their fixed term contract expiry date and to explore options for extension andredeployments with them. It is the responsibility of the line managerto carry outthis consultation process,by meeting with the employee who will have at least one year’s service atthe time their contract is due to expire.
It is important that the various stages of this procedure are carried out within the prescribedtimescales, to ensure that Public Health Wales meet its legal obligations. If the timescales and procedure is not complied with, Public Health Wales may be obliged to extend the employee’s contract for an appropriateperiod so that adequate notice of termination is given to the employee.
Where fixed term contracts are extended the arrangements contained in this procedure will alsoapply. In relation to the revised expiry date of the contract, fixed term contracts should not normally beextended by periods of less than 6 months but where this is unavoidable, particularly wheresuccessive short term extensions are given, advice should be sought from HR regarding how Public Health Wales can continue to meet our legal obligations, in respect of the impending expiry of the extension to thecontract.
5.Arranging the Meeting
The meeting should be held at least three weeks in advance of the commencement of the employee’s contractual notice period, counting back from the fixed term contract expiry date. Theemployee should be given at least one week’s notice of the meeting. This meeting must be heldeven if there is a possibility that the contract may be renewed but where the final decision remainsoutstanding in the run up to their contractual notice period.
The employee has the right to be accompanied by a trade union representative or work colleague at this meeting. Ideally, the employee should confirm if they intend to be accompanied and advise who they wish to bring along.
The line manager and a HR Officer will meet with the employee. It is recommended that where a manager has not undertaken such a meeting before that they seek advice from HR prior to the meeting date.
The line manager must write to the employee, inviting them to the meeting. This letter must state the reason for theimpending end of the fixed term contract. If, at the stage of holding the meeting, there is still a possibility that the contract may be extended(e.g. a late funding decision is awaited) this should be discussed with the employee, but it must alsobe explained that the procedure has to be followed on the basis that the contract is ending. Ifsubsequent to this meeting, a decision is made to extend the contract, HR should write to the employee withoutdelay, confirming that the expiry of contract can be withdrawn and details of the extended fixed term date and reason for the extension.
6.Rearranging the Meeting
If the employee or nominated representative is genuinely unable to attend the meeting, for exampledue to illness, a reasonable alternative date must be offered. If the employee’s representative cannot make the date of the meeting then the line manager, should propose anotherdate and time which should be no more than five working days later than the original date. If the employeefails to attend the re-arranged meeting there is no need to set a further meeting date and theconfirmation of notice letter can be issued by HR.
7.The Meeting
At the meeting, the reason why the fixed term contract is coming to an end should be discussed. The employeeshould have an opportunity to respond to the situation and put forward ideas which might influencethe decision not to terminate the contract. If no such issues are raised, then the decision to terminate willbe confirmed. If the employee presents information at the meeting which casts doubt on the validity ofthe reason for terminating the contract (e.g. if the employee considers that they have been unfairlyselected for redundancy), then further information/clarification should be sought before confirmingthe position to them. If further investigation is required this should be carried out as quickly aspossible by the HR Officer, with a view to completing this stage of the process within a maximum of 5 working days from the dateof the meeting. The line manager should keep a written record of what was discussedand agreed at the meeting and this should be retained in accordance with the Data Protection Act1998.
8.Suitable Alternative Employment
This is an important area to be considered when someone’s fixed term contract is coming to an end, and it mustbe looked at in detail. It would be impossible for line manager to know about allvacancies and potential vacancies within Public Health Wales, however, they are expected to find outabout any such vacancies by contacting the Recruitment Department.
If apost is identified that may be suitable, the HR Officer should be contacted immediately, ideally before thepost is advertised. If there are no suitable vacancies, then the employee should be invited, at the meeting, to forwardtheir CV (electronically) to the HR Officer so that alternative employment opportunities elsewhere in the neighbouring NHS Organisations can be explored.
Where alternative employment opportunities are identified within Public Health Wales, the procedure described in the Trust’s Redeployment Policy will be adhered to.
At the meeting, the employee should also be advised to regularly check the NHS Job Website for Public Health Wales and other local NHS Wales vacancies.
9.Redundancy Payments
If suitable alternative employment cannot be found for an employee whose fixed term contract is coming to an end and they have two years service, they are entitled to a redundancy payment, in accordance with the Fixed Term Regulations (2002). In such instances the manager must liaise with the HR Officer to ensure this payment is processed and paid in accordance with NHS Terms and Conditions of Service.
Fixed term employees with less than two years service will not be entitled to receive a redundancy payment but must be given a written statement which outlines the reason(s) for the dismissal.
10.Right of Appeal
If the contract is not being renewed, the employee should be informed at the meeting that they havethe right to appeal against the decision if they consider that procedure was not properly followed intheir case. For example an employee might consider that they were unfairly selected for redundancy.
Appeals should be submitted in writing to the Associate Director of Workforce and OD within 5 working days ofthe employee receiving the letter, which is issued after the meeting has been held, confirming thedecision not to renew the contract. An appeal letter must state the basis on which the appeal is beingmade.
11.Following the Meeting
Immediately after the meeting has taken place, the line manager must complete a Staff Leaver's form and forward it to the HR Department for processing. The only exception to this would be where further investigations need to be carried out as a result of issues, which arose at the meeting. In which case the staff leavers form should becompleted and forwarded as soon as those investigations are complete, but no later than 6 days afterthe original meeting.
On receipt of the staff leavers form HR will write to the employee confirming the decision not to renew their fixed term contract and advising them of their right to appeal. Copies of the ‘Staff Leavers’ form and the associated letters / meeting notes etc. should be retainedon the employee’s personal file.
12.Summary of Actions and Responsibilities
WHO / WHAT / WHENHR Officer / HR Officers to send reports to line managers listing all fixed term contracts due to expire in the next 6 months / Monthly
HR Officer / Write to fixed term employee re: contract end date / In advance of the commencement of the employee’s contractual notice period. It is recommended that this is done at least four weeks, prior to the commencement of the notice period e.g. if the notice period is 12 weeks this notification should be sent 16 weeks before the contract expiry date
Line Manager / Decide / confirm whether the fixed term contract can be renewed / At least four weeks in advance of the commencement of the employee’s contractual notice period
Line Manager / Write to the employee inviting them to attend a meeting, advising them of the purpose and their right to be accompanied / At least three weeks in advance of the commencement of the employee’s contractual notice period
WHO / WHAT / WHEN
Line Manager / Explore Suitable Alternative Employment Opportunities / Before date of meeting and ongoing during the contractual notice period
HR Officer / If suitable employment cannot be found and the employee is entitled to a redundancy payment, this should be processed in liaison with the Payroll Department / At least three weeks in advance of the employee’s contract expiry date
Line Manager / HR Officer / Hold meeting with the employee
If issues arise during the meeting which require further investigation these must be addressed within five days and the decision communicated to the employee / At least two weeks in advance of the commencement of the employee’s contractual notice period date
Line Manager / Confirm decision to HR to either renew or end the fixed term contract. Complete Staff Leaver Form and send to HR / 1 day after the meeting with the employee
HR Officer / Write to the employee to confirm whether the contract is to be renewed or will end on the expiry date.
If contract is to end on the expiry date remind the employee of their right of appeal / As soon as possible once the decision has been made
WHO / WHAT / WHEN
HR Officer / Organise the appeal hearing (if the employee appeals) / Within 5 days of receipt of the letter of appeal
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