Fixed Term and Temporary Contracts Education Personnel Services

Objective This presentation sets out the differences between fixed term and temporary contracts

Fixed term Contracts Definition Fixed Term Contracts are used to cover employment that lasts for a specified time. Fixed-term employees have the same rights as permanent employees. If a school does not treat fixed term employees in accordance with their legal and their contractual rights, it can lead to the use of the grievance procedure and ultimately an employment tribunal claim.

Advantages of Fixed Term Contracts Fixed-term contracts are often used and carry advantages in the following situations: where the permanent need for a post is genuinely uncertain; where the employer envisages a need to be rapidly responsive to other changing circumstances; for teachers in particular, fixed term contracts provide greater security of employment over teaching on a supply basis; they also provide the necessary qualifying criteria for paid sick pay and maternity.

Disadvantages of Fixed Term Contracts There is, however, a tendency to overlook the disadvantages of fixed-term contracts, including: a succession of different employees may be disruptive and lead to inconsistent application of standards wide use of fixed-term contracts may create problems of staff morale better candidates will be less attracted to fixed-term contracts because of the absence of job security, longer- term pension and other benefits dismissal before expiry of a fixed-term contract may be costly

Common reasons for Fixed Term Contracts The following are the most commonly used valid reasons for offering a fixed term contract: To provide cover during the secondment of (Name); a caveat should be included for an earlier end date should the employee return earlier than expected from their secondment. Due to the anticipated review of the school’s staffing requirements; Pending the cessation of specialised support for particular pupils;

Temporary Contracts Definition Temporary Contracts are used to cover employment where the end date is anticipated but the precise date is unknown. Temporary employees have the same rights as permanent employees. If a school does not treat temporary employees in accordance with their legal and their contractual rights, it can lead to the use of the grievance procedure and ultimately an employment tribunal claim.

Common Reasons for Temporary Contracts The following are the most commonly used valid reasons for offering a temporary contract: To provide cover during the sickness absence of (Name); To provide cover during the maternity leave of (Name); Pending a permanent appointment to the position; recruitment must be “actively” underway at the time of the commencement of employment of the temporary employee You should ensure that employees on Temporary Contracts are still subject to a probation period and performance management

Extending the contract In some cases, the person will be needed longer than originally anticipated and on occasion the reason for the new temporary or fixed term contract may be different to the original reason. Because of this it is not recommended that temporary or fixed term contracts are extended but that a new contract is issued. This will ensure that should the school employ someone on a succession of temporary or fixed term contracts the risk to the school of a challenge by the employee will be reduced.

CAUTIONARY NOTE! Employees who have been continuously employed for 4 years or more on a series of fixed term contracts, are automatically deemed to be permanent employees, unless the continued use of a fixed term contract can be justified.

Notice Provisions Temporary and Fixed Term employees The notice periods are as set out in the statement of particulars/contract of employment. However, if a school wishes to end a temporary or fixed term contract before its due date, there needs to be an urgent reason which must be clear and reasonable. Typically a school will be committed to paying the employee for the full term of the stated contract, unless there is a clear and urgent reason for ending it sooner.

Notice to be given by employees to resign from their employment If an employee wishes to end their contract sooner than the anticipated end date (temporary contracts) or the stated end date (fixed term contracts), then they need to provide one week’s notice.

Notice to be given by the employer to terminate an employee’s employment Temporary contracts can only be ended earlier than their anticipated end date and Fixed Term contracts can only be ended sooner than their stated end date in urgent circumstances. If it is deemed urgent, then the appointment is terminable by the giving of one week's notice subject to a minimum of one week's notice for each year of continuous employment up to a maximum of twelve weeks.

Ending fixed-term and temporary contracts The information contained in this section is aimed at supporting a school with understanding the process associated with ending a fixed-term or temporary contract.

It is important that schools understand the grounds on which employment is ending. Ending a contract is in law a dismissal. This means anyone with at least two years’ continuous service at the end of their fixed term contract has a right to pursue a claim of unfair dismissal. However, no continuous service is needed if the person has a protected characteristic to bring a claim of discrimination. NB. Continuous service will be accrued if the person has a succession of contracts, without a break, across schools where OCC is the employer.

The fixed term/temporary contract must contain the ‘reason’ for it being fixed term or temporary, and this should then correspond with the reason why the contract is ending. Where a fixed term or temporary contract is ending because the substantive post-holder that they are covering (either for sickness or maternity leave or secondment), is returning, this is not redundancy as there is no diminished need and the correct procedure must be used.

If ending on the grounds of diminished need, e.g. reduced staffing numbers as a result of a budgetary review, or a pupil no longer at the school, this will be a redundancy and the redundancy procedure will apply. The law protects fixed-term employees from automatically being selected for redundancy simply because they are on a fixed-term contract. If an employee has been continuously employed for two years or more within a school, local government or associated employment, and the reason for his/her dismissal is redundancy, s/he becomes eligible for a redundancy payment.

Guidance from OCC Notice will be served by the Headteacher in writing (letter template included in Policy). The letter will specify the date on which the fixed-term contract is due to end and confirm the reason the contract is ending. The employee will also be invited to attend a meeting to discuss the ending of the contract. The employee will have the right to be accompanied to this meeting by a work colleague or trade union representative. The employee has the right of appeal against the ending of their fixed-term contract.

Continuous Service An unbroken succession of fixed-term contracts will usually lead to an employee gaining continuous service from one contract to another. This can occur even when the employee has been employed in different posts, in different schools or for some purposes, with different local authorities or associated employers. Continuous service affects entitlements to annual leave, sick leave benefits, redundancy pay and the right to claim unfair dismissal at an employment tribunal.

QUESTIONS?

The following slides are for information only…

Variable Hours Clause contracts including permanent and additional temporary hours For teachers and support staff, there may be occasions when in addition to their permanent hours, they work extra hours on a temporary basis. Normally, if this is just for a short period e.g. one or two terms, or for a small number of hours, the employee can claim payment for these hours by filling in a casual pay claim form. The hours are then input on to the system via the Time Entry screen. Alternatively, if the extra hours are regular and longer term e.g. for three months or more, you may want to issue a new contract of employment, that includes the temporary hours.

To issue this type of contract follow these steps: To amend an employee’s hours please use the request employee record change form. Work instructions are available in the portal services/schools-staffing-forms/ibc-help-schools- requestemployeerecordchange.htm When in the screen entitled “new working pattern” answer YES to the question “Does this include fixed term or temporary hours”, you will then see the following fields:

Number of permanent hours - enter the number of hours per week that are permanent Number of temporary hours - enter the number of hours per week that are fixed term or temporary Reason - use the drop down to pick the reason. Some reasons display (?) after the option. Where this shows, delete the question mark and replace with the employee's name.

Variable hour contracts for support staff Included as standard, in all contracts of employment for TA’s, cover and lunchtime supervisors, what is called the “variable hour” clause. Whilst these contracts are for permanent hours, the ‘variable hour clause’ gives schools the flexibility to reduce an employee’s contracted hours, by up to the maximum of one third of their original contracted hours. This flexibility is normally used to reduce staff hours in response to reductions in pupil numbers. Two thirds of the original contracted hours are protected and cannot be varied. Issued as standard.

Previously these contracts would explicitly show the number of hours that could be varied, but this is not currently possible via the IBC system. However, we are exploring ways to ensure changes to these types of contracts correctly records the protected hours in the system. We also recommend, when recruiting new support staff, that you explain this provision to them and the reason for it. If and when schools need to use this clause, it will be important to look back on the employee’s record to check the hours that are protected. To issue a new contract to an employee, following as part of a variable hours’ contract, record this as a permanent change in hours on the IBC system.