SECTION 11 – CONTRACT OF EMPLOYMENT AND EMPLOYMENT RIGHTS
1.0Introduction
2.0Scope
3.0Principles
4.0Relationship with other Polices and Procedures
5.0Implementation Date
6.0Preliminary Considerations
7.0The Fixed-Term Employees (prevention of Less Favourable Treatment) Regulations 2002
8.0The Statement of Particulars
9.0Statutory Rights
10.0Permanent Contracts
11.0Fixed term Contracts
12.0Temporary Contracts
13.0Part Timers
14.0Variable Hours Contract
15.0Casual Contracts
16.0Changing or Varying a Contract of Employment
17.0Appeal, Grievances and Disputes
18.0Records
19.0Monitoring and review
20.0Further Information
National Conditions(CONTACT – JDE, CD, LT)
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GUIDANCE ON THE USE OF PERMANENT, FIXED TERM, TEMPORARY AND CASUAL CONTRACTS
OVERVIEW
This document is designed to provide schools with information on permanent, fixed term, temporary and casual contracts. The document provides guidance to managers on the circumstances when such contracts should, and should not, be used. It also provides guidance on how to manage such contracts.
To underpin the guidance the document also includes a short section on the the Fixed-Term Employees (Prevention Of Less Favourable Treatment) Regulations 2001.
1.0INTRODUCTION
1.1A contract of employment is an agreement between the school and employee about the terms and conditions under which the employee will work for the school and the remuneration and benefits which the school will give the employee for the exercise of those duties which have been agreed between them.
1.2A number of different types of contract are used by the school in order to meet its staffing requirements and to provide managers with the flexibility to provide an efficient and cost effective service.
1.3This guidance is concerned with the types of contract used by the school, including permanent, fixed term, temporary and casual contracts. Each type of contract has its advantages and disadvantages and each is suitable for use in particular circumstances. Additionally each type of contract has its own legal implications for the employee and the school.
1.4This document is designed to provide Headteachers and Senior Managers with information on fixed term, temporary and casual contracts and to guide them on the circumstances when such contracts should, and should not, be used.
2.0SCOPE
2.1This guidance must be followed by all schools within City of York Council when they are undertaking resource planning.
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3.0PRINCIPLES
3.1This guidance is based on the following principles:
- Compliance with the relevant equalities and Fixed Term Employees Regulations 2001 and other relevant employment legislation;
- Compliance with the principles and intent of the City of York Council Equalities Statement;
- Openness and transparency;
- Fair and consistent application across the Authority.
4.0RELATIONSHIP WITH OTHER POLICIES AND PROCEDURES
4.1This guidance should be read in conjunction with the School’s recruitment and selection and equalities policies.
5.0IMPLEMENTATION DATE
5.1This guidance applies to all permanent, fixed term, temporary and casual contracts that commence on or after the 10th July 2002.
6.0PRELIMINARY CONSIDERATIONS
6.1When considering the type of employment contract which is the most suitable way of filling a vacancy, managers should ask themselves the following questions:
- Is this a permanent role or a short-term one?
- What contribution is the job holder expected to make to the fulfilment of the School’s Improvement Policy? Does this demand any special contractual terms?
- Is the role to undertake a specific project?
- Is this a full-time or part-time role?
- Is the contract for a specific training period, e.g. an apprenticeship?
- Is the post funded?
- Is the funding permanent, or if annually agreed, is it likely to be agreed each year? What is the funding history of the post?
6.2These issues must be considered prior to the advert for the job being placed so that an indication of the type of contract can be given to prospective employees.
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7.0THE FIXED-TERM EMPLOYEES (PREVENTION OF LESS FAVOURABLE TREATMENT) REGULATIONS 2001
7.1Introduction
7.1.1The Fixed-Term Employees (Prevention Of Less Favourable Treatment) Regulations 2001 apply in the UK from the 1st October 2002 onwards. However, as the Council is a public sector organisation and the Regulations are based on a European Directive, the regulations apply to the Council from the 10th July 2002 onwards. The regulations apply to fixed term contracts, but, by their nature, temporary contracts may also be considered to be fixed term (see ‘Temporary Contracts’) and may also be covered by the Regulations. If in doubt, schools are advised to assume that the Regulations apply. The regulations do not, however, apply to agency workers, apprentices, students on work placements or employees employed on training, work experience or temporary work schemes specifically designed to provide them with training or work experience to help them find work where the schemes are funded by an institution of the EU.
7.1.2The public sector uses proportionately more fixed-term contracts than the private sector and accounts for just under half of the total. It also accounts for over 70 per cent of fixed-termers who have been in their jobs for over two years. The Regulations will therefore have a wide ranging impact on how the Council uses fixed term contracts and how the Council undertakes its resource planning.
7.2Less Favourable Treatment
7.2.1The Regulations are designed to ensure that Council employees on fixed-term and temporary contracts must not to be treated less favourably than a permanent employee; unless this treatment can be objectively justified. This covers the terms of the contract as a package, or being subjected to any other detriment by any act, or deliberate failure to act, by the Council.
7.2.2Less favourable treatment will only be justified if it can be shown that the treatment:
(a)is to achieve a legitimate objective, e.g. a genuine business objective;
(b)is necessary to achieve that objective; and
(c)is an appropriate way to achieve the objective.
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7.2.3Additionally, employees on fixed term contracts have the right to receive information on vacancies within the Council. This responsibility will be discharged by following the Council’s usual practice of circulating and distributing the internal vacancy bulletin (IVB) via e mail, on notice boards and on the intranet.
7.2.4If an employee on a fixed term contract thinks that they have been treated less favourably because of their contractual status, they have the right to ask for a statement setting out the reasons for the less favourable treatment. Such requests must be made to the Headteacher, who will arrange for a response to be sent to the individual within 21 days of receipt of the request.
7.3Successive Contracts/Extension of Contracts
7.3.1The Regulations require the abolition of the abuse of successive fixed-term contracts. The Regulations provide that, where a fixed-term employee who has been employed continuously on fixed-term contracts for four years or more is re-engaged on a fixed-term contract without his or her continuity being broken, the new contract has effect under the law as deeming it to be a permanent contract. This four-year provision is not retrospective and any continuity of employment before the 10th July 2002 will not count.
7.4End/Termination of Contracts
7.4.1The Regulations protect employees on fixed term contracts against being unfairly dismissed if the reason for the dismissal is:
(a)that the employee has:
(i)brought proceedings against the Council under the Fixed Term Employees Regulations 2001;
(ii)requested from the School a written statement explaining why they have been treated less favourably (if they believe that this is the case);
(iii)given evidence or information in connection with any proceedings brought by the Council;
(iv)otherwise done anything under the Regulations in relation to the Council or any other person;
(v)alleged that the Council infringed the Regulations; or
(vi)refused (or proposed to refuse) to forgo a right inferred on him or her by these Regulations; or
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(b)that the Council believes or suspects that the employee intends to do any of the things mentioned in (i)-(vi).
These rights are in addition to the normal employment rights governing unfair dismissal etc.
7.4.2The non-renewal of a fixed term contract is already a dismissal in law (see fixed term contracts, below). Employees who are employed on a fixed term contract, or a series of fixed term contracts, of one year or more have the right to a written statement of reasons for their dismissal and also the right not to be unfairly dismissed.
8.0The Statement of Particulars
8.1The Statement of Particulars sets out the main features of an employee’s terms of employment. An employee who works for one month or more is entitled by law to receive a written statement of particulars within two months of starting work.
8.2The written particulars detail the terms and conditions of an individual’s employment and they cannot be unilaterally varied without breach of the contract, which in practise, means obtaining the employee’s consent to the proposed change as and when the need arises, (See Section 16.0).
8.3The statement of particulars is currently issued by the LEA following appointment and this contains all the information which an employer is legally required to provide.
8.4The contractual position for the majority of staff is straightforward, particularly for full time permanent employees. There are, however, a number of variations to this; contracts for part time or temporary staff, contracts making use of variable hours clauses. More information on these different types of contracts is detailed later in this section.
9.0Statutory Rights
9.1All staff are entitled to:-
EntitlementContinuous Service
1Written statement of terms of
employment13 Weeks
2Itemised pay statement
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EntitlementContinuous Service
3Time off for trade union duties
4Time off for Trade Union activities
5Time off for public duties
6To return to work after maternity
absence.
7Statutory Maternity Pay
(providing earnings threshold is met)
8Minimum period of notice of dismissal1 month
9Written statement of reason for dismissal2 years
10Not to be unfairly dismissed1 year
11Time off to look for work/arrange
training in a redundancy situation2 years
12Redundancy pay2 years
13Time off for ante-natal care
14To equal treatment regardless of race, sex or marital status.
15To equal pay, regardless of sex
16To belong/not belong to a Trade Union
17To time off as a safety representative
18To statutory sick pay (providing weekly threshold for earnings is met).
*The question of whether or not service is continuous can be quite complicated as service with an associated employer such as another LEA may in some circumstances count when calculating the length of continuous service. A list of associated employers and further advice on continuity of employment can be obtained from the Human Resources Adviser.
10.0PERMANENT CONTRACTS
10.1Description
10.1.1Permanent contracts are the most usual form of contract. They may be for full or part time hours. The important feature of such contracts is that the termination date is not determined in advance, nor is it implied that the contract will be of limited duration.
10.1.2The contract will state the date on which employment began and the date on which continuous local government service began, if this is not the same. It sets out the notice which will be required from either party in order to bring the contract to an end. The notice that the school must give an
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employee is based on the employee’s local government start date i.e. their continuous service date, rather than their start date with City of York Council.
10.2Advantages and Disadvantages
10.2.1The offer of a permanent contract often attracts more applicants for a vacancy and may lead to a higher quality of candidate in the recruitment pool. Permanent contracts may also mean that staff turnover is lower due to increased job security for the individual. This job security also leads to increased productivity and a higher level of commitment to the organisation.
10.2.2However, by their nature, permanent contracts are less flexible than other types of contract. Additionally, the termination of a permanent contract by the Council will always be considered in law to be a dismissal and care must be taken to ensure that such dismissals are legally ‘fair’, for instance by following a full and proper procedure.
10.2.3Notwithstanding, due to the legislation covering fixed term and temporary contracts, other than in the limited circumstances covered elsewhere in this guidance, there is often very little advantage to be gained by offering a contract that is not permanent.
10.3Termination of a Permanent Contract
10.3.1Termination may be for a variety of reasons. The school’s policy and procedures concerning the termination of a permanent contract can be found in the applicable policy, for instance, the disciplinary, capability, or redundancy procedures.
10.3.2 For teaching staff the school must give notice as follows:
2 months notice for dismissal at end of Autumn Term (31 December) and Spring Term (30 April)
3 months notice for dismissal at end of Summer Term (31 August)
Letter giving notice must be received:
No later than 31st October for 31st December
No later than last day of February for 30th April
No later than 31st May for 31st August
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For all staff, statutory notice is one week for every year of continuous service as a minimum, to a maximum of 12 weeks. Statutory notice or contractual notice applies, whichever is longer.
11.0FIXED TERM CONTRACTS
11.1Description
11.1.1A fixed-term contract is a contract for 'a specific stated term' fixed in advance or which can be ascertained in advance by reference to some relevant circumstance 'identified with a precise date in the future', even though it contains a provision allowing for it to be terminated by notice during that term. It will therefore have both defined start and end dates.
11.1.2A further condition in the definition of 'fixed term' is that the contract must state a maximum defined period of employment and not express the period as a minimum period with provisions for future employment. For instance the contract must state that 'This contract is for two years beginning on 1 September 2000' as opposed to 'This contract is for a minimum period of one year and may be extended'.
11.1.3A fixed-term contract is a contract of employment:
(a)which is made for a specific term that is fixed in advance; or
(b)which terminates automatically on the completion of a particular task or upon the occurrence or non-occurrence of any specified event other than:
(i)the attainment by the employee of any normal retiring age or
(ii)a breach of the terms of the contract of employment arising from the conduct of the employee that would entitle the school to dismiss him or her, through the use of the school’s procedures i.e. disciplinary, capability, probationary procedures etc.
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11.2Advantages and Disadvantages
11.2.1Where future funding for a project is uncertain, a fixed term contract may help the school cope with the uncertainty. A fixed term contract may also be used if an employee is engaged to look after a particular pupil for a finite period, for instance to look after a child with special needs in a school, and the child is nearing the age at which they would leave school. However the terms and conditions of employment relating to employees on fixed-term contracts at the Council are identical to those applicable to permanent employees therefore, in financial terms, there are no financial incentives to use a fixed term contract. In the instances where the contract is reliant on funding, the Council will insert a clause giving the right to give notice to the employee in the event that funding ceases. Failure to insert this notice clause could make the school liable to pay an amount in damages equal to the amount the employee would have earned had the contract run its full course. However where funding is agreed annually, but is likely to be granted each year, this should be viewed as an internal budgetary mechanism for the school and not as a reason to offer a fixed term contract that is likely to be extended each year. Such fixed term contracts are likely to be viewed in law as permanent (see below) and therefore there is nothing to be gained from offering a fixed term contract that it likely to be extended year on year. Managers must take an informed view on such matters prior to deciding which type of contract to offer.
11.2.2Conversely, employees on fixed-term contracts may not have the same degree of commitment to the school, the service or the customer as a permanent member of staff and they may leave prior to the end of the contract, rather than be left with no employment once the contract has run its course. In these circumstances, or if the task is not completed when the contract comes to an end and an extension is sought, it may be difficult to extend the contract or to find someone of sufficient calibre to take on a short-term contract to complete it.
11.2.3Prior to the Regulations coming into force, the use of redundancy waiver clauses in fixed term contracts did have the advantage over permanent contracts in that no redundancy pay was required to be made at the end of the contract. However redundancy waiver clauses are no longer lawful and will not be used by the Council from the 10th July 2002. This applies to the agreement of new waiver clauses and also to the extension and renewal of waiver clauses. Consequently employees who have been employed on fixed term contracts for two years or more have a right to redundancy payments if they are made
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redundant at the end of their contracts. Redundancy waiver clauses in contracts that were in force prior to the 10th July 2002 will remain to be valid.
11.3Offer and Acceptance of Fixed Term Contracts
11.3.1The steps which the school must take in respect of each fixed-term contract, regardless of the reason for the appointment or its expected duration, are:
(a)the offer of employment must be expressed in writing as fixed term and the term of the contract expressly stated;
(b)the reason for the appointment should be explained to the employee when the post is offered, if not before i.e. in the advert and at interview, and confirmed in the written offer;
(c)the offer should be accepted by the employee in writing i.e. by returning a signed copy of the offer letter;
(d)the written statement of particulars of the employee's contract of employment should confirm that it is a fixed-term appointment.
11.3.2Managers must not rely on an implication of acceptance of a fixed term contract and the employee must not be allowed to start work until they have confirmed their written acceptance of the offer, acknowledging that the contract is of a fixed term duration i.e. by returning a signed copy of their offer letter.