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How to fulfil a resourcing need - Fixed term working
A fixed-term contract is one that ends on a specified date or on the occurrence of a particular event such as the completion of a task, the loss of funding or the return to work/resignation of the person being covered, for example, specific project (for example, single status); specific grant funding; sick and/or maternity cover for a named person.
Managers or headteachers must provide a valid reason for the fixed term nature of the appointment as this must be stated in the contract; in line with one of the following template fixed term clauses:
- You are employed in this post on a fixed term basis to xx/xx/xxxx for the specific purpose of supporting the xxxxxx Project. Your employment in this post will terminate on xx/xx/xxxx, at which time it will automatically expire without further notice unless otherwise agreed in writing by the council with yourself.
- You are employed in this post on a fixed term basis to xx/xx/xxxx as your employment is dependent on xxxxxx funding. Your employment in this post will terminate on xx/xx/xxxx, at which time it will automatically expire without further notice unless otherwise agreed in writing by the council with yourself.
- You are employed in this post on a fixed term basis for the purpose of providing cover for the post of xxxxxxx whilst the current post holder xxxx xxxxxx is absent from the post. Your employment in this post will terminate when xxxx xxxxxx returns to or resigns from the post, at which time it will automatically expire without further notice unless otherwise agreed in writing by the council with yourself. The council cannot confirm how long xxxx xxxxxx’s absence from the post will last but it is likely that your employment will come to an end on or around xx/xx/xxxx. It is a condition of this contract that you agree that your contract of employment will terminate on xxxx xxxxxx’s return to or resignation from the post.
Fixed term appointments are protected in law under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 and have specific employment protection from Day 1.
Normally, the expiry of a fixed term contract will be fair, as long as it is clear that the expiry of the fixed-term is the real reason and the employer has acted reasonably. There is an expectation that employers will review carefully whether alternative employment can be offered. Within the council, this would include providing Alternative Employment Support where the employee has more than 1 years’ service. This support should be in place for the duration of the employee’s notice period and Managers should take into account the notice which the employee is entitled to receive when arranging this.
In a school based setting the headteacher should in the first instance give consideration to any available positions within the school which would provide suitable alternative employment. For Community and Voluntary Controlled Schools only, the Headteacher should make contact with the local authority for access to the Alternative Employment Scheme and the council’s job search support programme. Please contact the HR, Payroll and Recruitment Admin on 01228 223333 for further information.
Dependant on service (over two years) the employee could be entitled to redundancy pay (but not normally where covering the absence of an individual).
The natural expiry (without renewal) of a fixed term contract is automatic and neither party need give notice but managers or headteachers must follow a normal fair procedure; see “How to deal with the natural expiry of a Fixed-term contract” below.
In addition, notice can be issued to end a fixed term contract prior to the natural date of expiry. Again, managers or headteachers must follow a fair procedure see “Dismissal Procedure for the termination of a fixed-term appointment for reasons other than natural expiry” below.
A fixed term contract could be extended where operationally necessary. An offer and acceptance to extend a fixed term appointment prior to the expiry date is a contract variation (not dismissal and re-engagement). An employee who has four years' continuity of employment on multiple fixed-term contracts will automatically become a permanent employee (except in exceptional circumstances) and will be confirmed with a permanent contract. A single fixed term contract can be for four years or more without being deemed to be permanent.
Selection for termination/redundancy purely on the basis of fixed term status is unlikely to be deemed to be fair and highly likely to be unlawful.
How to deal with the natural expiry of a Fixed Term contract
Managers/Headteachers must establish a fair reason for non-renewal ahead of expiry of the fixed-term contract and be able to demonstrate the reason. This could be redundancy (where the work has ceased or diminished) or “some other substantial reason” (e.g. end of a maternity cover). The manager/Headteacher should invite the fixed-term employee, in writing, to a meeting to discuss the intended non-renewal of the contract and provide the opportunity for him or her to appeal the decision not to renew the contract. The right of appeal should be to a more senior manager, usually the manager’s direct line manager.
In a school based setting the expiry of a fixed term contract will be dealt with by the Headteacher where Governors have delegated the power to dismiss. School based staff should submit an appeal in writing to the Chair of Governors.
The employee may be accompanied to this meeting, but if not available this should not delay the meeting.
As mentioned above, the fixed-term contract will terminate automatically at the end of the fixed term without the need for the employer or the employee to give notice. However, as a matter of good practice, Managers/Headteachers should keep fixed-term employees informed of their intentions around the contract's expiry.
Points to note:
Provide alternative employment support, ensuring other vacancies which may be suitable are brought to the attention of the employee.
Natural expiry of a fixed term contract must not be used to manage a capability issue. Allowing a contract to naturally expire and then engaging someone else to do the same job could be seen as discriminatory.
Where the non-renewal of the fixed term contract is due to redundancy, any redundancy payment will be dependent on length of service.
Dismissal Procedure for the termination of a fixed-term appointment for reasons other than natural expiry
The manager must write to the employee confirming the circumstances that are leading to potential dismissal and inviting them to a meeting to discuss the matter and advising them of their right to be accompanied by a trade union representative or work colleague. The employee will be notified of the meeting as soon as possible but must be given not less than five working days' notice in writing of the date, time and place of the hearing.
The manager will notify the relevant senior manager who will conduct the meeting.
In a school based setting the expiry of a fixed term contract will be dealt with by the Headteacher where Governors have delegated the power to dismiss. School based staff should submit an appeal in writing to the Chair of Governors.
The employee must take all reasonable steps to attend the meeting. If the employee has a reasonable excuse for being unable to attend the meeting, or his/her trade union representative or work colleague is unable to attend, a postponement will be arranged. A new date will be set which does not delay the process unduly. However, where the employee is persistently unable or unwilling to attend without good cause, a decision will be made on the available evidence.
The employee and/or their representative will be given the opportunity to state their case. The manager/Headteacher will provide information on what actions have been taken.
After the meeting the senior manager must notify the employee in writing of the decision and notify the employee of their right to appeal against the decision if they are not satisfied with it. This will include details of the senior manager who the appeal should be addressed to.
If the employee does wish to appeal they must inform the senior manager within 5 working days of the date of notification of the decision of the meeting. The appeal will be acknowledged within 5 working days.
The employee will be invited to a further meeting and must take all reasonable steps to attend. Employees have the right to be accompanied by a trade union representative or work colleague at this meeting.
After the appeal meeting the manager/Headteacher concerned must inform the employee in writing of the final decision.
There is no further right of appeal.