YATTON FEDERATED SCHOOLS POLICY FOR FIXED TERM CONTRACTS (BASED ON NORTH SOMERSET COUNCIL MODEL POLICY) Document Information

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1 YATTON FEDERATED SCHOOLS POLICY FOR FIXED TERM CONTRACTS (BASED ON NORTH SOMERSET COUNCIL MODEL POLICY) Document Information Reviewed by: Strategy Responsibility: Strategy Last Review: 9 th October 2012 Next Review: October 2014 Review Cycle: Bi-Annual Ratified by FGB 22 nd October 2012 Signature (FGB) Not required Signature (Head) Not required 1. Scope 1.1 This policy covers all fixed term contracts. Fixed term contracts are time limited contracts. A contract is only fixed term if it meets the criteria below i.e. a) It has a specified start and end date set in advance of the contact being offered to any one or states an end date ; b) To meet the completion of a particular task; or c) It will end on the occurrence or non-occurrence of a specific event (other than normal retirement age). (Examples include the end of funding for a specific role or the return of the permanent postholder. d) For a list of legitimate fixed term contract reasons, see 2.1 below) 1.2 The policy does not cover: a) Supply teachers (unless they are employed on a fixed term contract); b) Casual support staff; c) Agency staff; d) Modern apprentices; and e) Students working on occupational placements as part of a higher educational programme. 2. The Policy 2.1 The School accepts that: Fixed term contracts will be used for fair and justified reasons in every instance and will cover: maternity, adoption, parental and sick leave and leave of absence; time limited secondments and acting up arrangements; short-term projects financed by external funding; audit-funded SEN support; pending the advertisement and appointment to the permanent post; specific one-off tasks which when completed the role will end. It is the view of Schools HR that careful consideration needs to be given before a school uses a FTC for the reason pending a formal review of the staffing establishment. This is because, unless the post concerned can be clearly 1

2 differentiated from permanent posts, those on such pending review contracts would need to be ended using the Redundancy Policy rather than the FTC Policy for reasons connected to the Less Favourable Treatment (Fixed Term Contract) Regulations. Please see paragraphs 14.1 and 14.2 of the Fixed Term Contracts Supporting Guidance below) Fixed term staff will not be treated less favourably than permanent staff Fixed term staff will be made aware of permanent job opportunities in the School The successive use of fixed term contracts will be avoided, wherever possible Fixed term staff will automatically be made permanent after 4 years continuous service, where they have two or more successive contracts of employment, unless there is an objective justification for not doing so. 3. Recruitment stage 3.1 Before a post is advertised, the School will consider whether any existing fixed term contracts ought to be extended or made permanent, as the fixed term employee may have acquired this right. Additionally, the School will consider whether there are any other fixed term employees who should be ring-fenced for the post [please refer to the attached guidance on ringfencing arrangements]. 3.2 The advert will clearly state where a post is for a fixed-term and the reason for this. It should also include the expected duration of the post and the event that will bring about its conclusion i.e. the end of maternity leave or of funding. A Vacancy Pro-forma which can be used for advertising posts in the Vacancy Bulletin is attached at Appendix A. 3.3 The School will ensure that all candidates understand that the post is fixed term at the advert and interview/selection stage, the reasons for this, the expected length of the contract and what will cause the contract to end. 3.4 The written offer letter to the successful candidate will clearly state that the post is fixed-term and the reason for this, the expected duration of the post and the event that will bring about its conclusion. Where possible the funding for the post will be clearly specified. 3.5 The contract paperwork (forms T1a and S1a) and the subsequent contract of employment will state that the post is fixed-term and reinforce all of the above contract details. 4. During the contracts 4.1 The School will ensure that systems are set up to monitor all fixed term contracts and to enable sufficient notice to staff in writing when they are due to end. 2

3 4.2 Unless otherwise stated in the contract, the notice period for support staff is based on their continuous service and ranges from 1 12 weeks. 4.3 For fixed term contracts of one year or more, the normal notice period for teaching staff (other than Headteachers) is up to 3 months and is given at set times of the year to coincide with end of the three traditional school terms (these three end dates being 31 December, 30 April and 31 August) 4.4 For fixed term contracts of several months, where it is not possible to meet the recognised teacher notice periods as set out in the Burgundy Book, and for some other fixed term contracts where the substantive postholder may give less notice of returning to their post, for example, following sick leave, the employee will be given one month s notice and this will be outlined in their contract of employment. 5. Procedure for Ending Fixed term Contracts 5.1 The following procedure will be used for managing the non-renewal of a fixed term contract. N.B. The exception would be where a fixed term contract is ending for reason of redundancy and where there is no objective justification for selecting the fixed term employee over permanent employees for redundancy the School s Redundancy Procedure should be followed (please refer to Fixed Term Contracts Supporting Guidance (Section 14 Selection for Redundancy for further information).. Step One Invitation to Consultation Meeting Prior to the expiry of the fixed term contract the head teacher/manager will write to the employee to formally advise him/her that the post is expected to end on a specified date and giving the reason for this. In the letter they will invite the employee to a meeting (giving at least 5 working days notice) to consult on their possible dismissal (see model letter at Appendix B). The letter will state the time, date and place of the meeting and that the employee can be accompanied by a trade union representative or workplace colleague If the employee declines to attend this meeting they will be asked to sign the declaration on the letter confirming that they have been given the opportunity of a meeting to discuss their post but do not wish to attend In advance of the meeting, the head teacher/manager will consider whether there are any existing or forthcoming vacancies in the school and whether ring-fencing arrangements would apply. Step Two Consultation Meeting At the consultation meeting the head teacher/manager will inform the employee that their fixed term contract is expected to end on the specified date and that this will result in their dismissal and will give the reason why it is expected to end, (e.g. that the child they were providing support to is leaving) The headteacher/manager will listen to and consider any representations made by the employee. 3

4 5.1.5 The headteacher/manager will advise the employee of any job opportunities within the School and whether they are entitled to be ring-fenced for the position(s). The head teacher/manager will make them aware of the Schools Vacancy Bulletin for jobs in other North Somerset schools and of North Somerset Council s website where all Council jobs are advertised ( A record will be taken of the meeting and any action points agreed (see model Meeting Form at Appendix C). Step Three Decision If, after considering any representations made by the employee, the dismissal is still to go ahead, the headteacher/manager will issue formal written notice to the employee and will advise them of the right of appeal (see model letter at Appendix D). Step Four - Appeal The employee has a right of appeal to a governor s panel against a decision to end a fixed term contract on the basis of either redundancy or normal dismissal. Appeals should be made in writing to the head teacher stating the reason for the appeal within 10 working days of the letter giving formal notice A governors panel comprising of a minimum of two non-staff school governors will consider the appeal. The employee has the right to attend to make their representations and to be accompanied by a trade union representative or by a work colleague. The head teacher/ manager will present the management case. A member of the Schools HR Team may attend the appeal hearing. A record of the appeal hearing will be taken. The Chairperson will confirm the panel s decision in writing to the employee. There is no further right of internal appeal. 5.2 A flow chart setting out the procedure to be followed when ending fixed term contracts is attached as Appendix F. 4

5 1. Introduction FIXED TERM CONTRACTS SUPPORTING GUIDANCE 1.1 Employment legislation has been introduced in recent years covering the use of fixed term contracts. The purpose of this guidance is to assist schools in ensuring the effective management of fixed term contacts within the legislative framework, through from appointment to termination. Model letters/pro formas to support in the implementation of the Fixed Term Contract Policy are attached. 2. Rights of Fixed-Term Employees 2.1 The Employment of Fixed-Term Employees (Less Favourable Treatment) Regulations) 2002 gives fixed term employees similar employment rights to permanent employees. With the introduction of these regulations many of the reasons why there may have been an advantage in offering employment under a fixed-term contract have now gone. In some cases employees on fixed term contracts may now have more rights than permanent employees. 2.2 The rights of fixed term employees now include: the right not to be treated less favourably than comparable permanent staff; the right to be informed of suitable permanent vacancies; the right to bring an unfair dismissal claim to an employment tribunal after one year s qualifying service (N.B no qualifying service required in cases involving discrimination on the grounds of sex, race etc) the right to a redundancy payment if made redundant after two years service; [and if aged 50 or over to be able to access their occupational pension - see Section 13 Redundancy Pay and Associated Costs;; the right to be made permanent if they have been employed continuously for four years on two or more successive contracts, unless there is an objective justification for not doing so [please consult the Schools HR Team if this situation arises]. 2.3 The legislation also sets out clear procedures that need to be followed for the appointment and ending of fixed term contracts. There are now many more costly legal challenges from fixed-term employees where they consider that appropriate procedures have not been followed. It is therefore essential that schools can demonstrate that a fair and consistent procedure has been followed and that they have the supporting written documentation to demonstrate this. Having a robust flagging-up system for contracts coming to and end is essential, as is the maintenance of correspondence with the colleague(s) to ensure that due meetings are offered and that notice is issued in good time. 3. When is it appropriate to use a fixed term contract? 3.1 Given the current legislative requirements regarding the use of fixed term contracts It is paramount that schools only use fixed term contracts for genuine and clearly justified reasons. The legally recognised and supported reasons are limited to the situations set out in Section 2 of the Fixed Term 5

6 for Contract Model Policy. However, schools should give careful consideration in every case to whether a fixed term contract is needed at all. For example, is it necessary to employ a fixed term employee to provide audit funded support a pupil with special educational needs or can an existing permanent member of staff s hours be temporarily extended to cover this? Similarly, if a pupil who has been awarded audit funded is expected to remain at the school for many years and the funding is expected to continue for the full duration, could this be offered on a permanent basis instead? 3.2 Fixed term contracts should not be used to provide a trial period to test someone s performance, for example where the school has doubts about a candidate s ability at the recruitment stage. Nor should they be used where the school has a general concern about the school s budget or where there are no proposals to undertake a staffing review in the foreseeable future. Even in these circumstances the use of pending review contracts needs to be carefully considered (see Para 2.1.1) 4. At the recruitment stage 4.1 Fixed term employees are subject to the same recruitment procedures and checks as permanent employees, including CRB, ISA check, reference, qualification and eligibility to work in the UK checks. 4.2 At each stage of the recruitment process, the advert and documentation should state: the reason for the appointment being fixed term; the duration/likely duration of the appointment and wherever possible the funding arrangements; and the event that will bring about the conclusion of the fixed term contract. 5. Early Termination of a Fixed Term Contract 5.1 All fixed term contracts must contain a clear statement setting out the reason for the fixed term nature of the employment and the anticipated date and reason which will bring about its conclusion. 5.2 All fixed term contracts will include a due notice period for the early termination of the role by either the school or the employee. This allows both the school and the employee to end a fixed term contract early by serving the appropriate notice period. 5.3 The reasons for the employer ending a fixed term contract early could be: capability due to poor performance; capability due to health; conduct (disciplinary); redundancy; some other substantial reason (SOSR) [please consult Schools HR Team]. 5.4 In each of these situations, appropriate procedures need to have been followed before reaching the dismissal stage. [please consult Schools HR Team]. 6

7 6. Non-renewal of a fixed term contract 6.1 The non-renewal of a fixed term contract also constitutes a dismissal in law and schools must ensure that fixed term contracts on expiry, are ended fairly and in accordance with the minimum statutory procedures. Therefore it is strongly advised that the four step procedure outlined within the Fixed Term Contracts Model Policy is followed. 6.2 Non-compliance with this procedure may render the dismissal automatically unfair and if the member of staff has one year or more of continuous service, they could bring a successful claim to an Employment Tribunal creating significant costs for the school. There is also vulnerability in cases where the employee has less than one year s service, should any claim being be based on discrimination, as in such cases there is no qualifying service requirement to be met by the employee. 6.3 Where notice is issued by the school a copy of the notice letter should be forwarded to Schools HR Transactional Team as notification that the personnel file for the employee now needs to be closed. A S2/T2 is not required as the Payroll Team will automatically cease pay for all employees at the stated end date of their fixed term contracts, unless S1s/T1s are received ahead of this to indicate a renewal. The exception to this is where the fixed term contract is ending due to redundancy in which case an S2/T2 will be required to state that a redundancy payment is due. 7. Notice periods 7.1 The notice period for support members of staff is based on their continuous local government service (this will include other local government service with other schools where there has been no break in service). It ranges from one week for service of up to two years and for two years or more, it is a week for each year of employment up to a maximum of 12 weeks, for example if someone was employed for 6 years they would be entitled to 6 weeks notice. 7.2 The notice periods for teachers are: Notice date Contract end date 31 October 31 December 28 February 30 April or last day of Easter holiday 31 May 31 August 7.3 For short fixed term contracts of several months or where the return of the substantive postholder does not allow for the above notice period, staff will normally be given one month s notice. 8. Notice periods for support staff with multiple contracts 8.1 Where a member of staff has more than one contract running concurrently with different start dates and one of the contracts is ending, the notice period should be calculated from the start date of the contract that is ending and not the person s local government start date. 7

8 8.2 However, where a member of staff has only one contract but has been continuously employed in a succession of contracts, the notice period should be counted back to the start date of the first contract (the local government start date). This will include periods of employment with other schools/local authorities and redundancy pay will incorporate this. 9. Renewal of Fixed Term Contracts and Permanent Status 9.1 Under the fixed term regulations, where a fixed term employee has been employed continuously for 4 years in two or more successive contracts, they will automatically become permanent and subject to the terms of a permanent contract unless there is an over-riding business case for not doing so. But such instances will be extremely rare (further guidance is available from the Schools Advisory HR Service) Given this it is important that the School has effective monitoring arrangements in place to check the duration of fixed term contracts and a change of contract from fixed term to permanent should be advised to the individual in writing and a copy placed on their personnel file (see model letters). 9.3 If there is scope to extend a fixed term role, for example, where further external funding becomes available, the employee s contract should be renewed for a further fixed term. Where a fixed term contract is to be renewed the Schools HR Transactional Team and Payroll should be informed on a T1a or S1a form as normal, and the employee should be advised in writing by the School. 9.4 If a fixed term role becomes permanent (e.g. externally funded and then becomes mainstream funded) and the employee has been doing the role for one year or more, they can automatically be made permanent in that role, without it being advertised externally and the change of terms confirmed in writing, in the event that they have a lone right to this ring-fence (see model letter at Appendix E). However, it may be the case that a number of like fixed term contracts are ending in which case a wider selection pool should be applied. 9.5 If a fixed term role becomes permanent and the employee has been doing the role for less than one year, the post should be advertised and the employee given details about the permanent opportunity. 10. Publicising permanent posts or on-going fixed term opportunities 10.1 A fixed term employee has a right to be notified of any suitable vacancies which may help them find permanent employment with the employer. This means that the School must be able to show that they have been proactive and made sure that suitable vacancies are notified to any such employees. A job advertisement pinned to a notice board would not most likely be deemed to be sufficient. Schools have a greater onus to do this when a fixed term employee has been given notice of dismissal. [Please refer to the Section 11 - Suitable Alternative Employment ]. 8

9 11. Suitable Alternative Employment 11.1 When a fixed term employee has been given notice of dismissal they should be ring-fenced for any suitable vacancies within the School which become available. This means that they should be considered for the vacancy and shortlisted and interviewed where they meet the essential criteria for the post in the first instance (along with any other employees at risk of dismissal), before a post is internally or externally advertised, and their suitability for the role assessed against the essential requirements of the post In such cases, a new T1/S1 will need to be completed to ensure that a new contract is issued reflecting the new appointment. For example, if the employee has been covering a period of sickness absence and the substantive postholder returns to work, and the employee is then appointed to cover someone s maternity leave, they must be given a new contract to reflect the new circumstances. If the School simply extends the original contract it would be for the wrong reason i.e. covering sickness absence and could result in the School being unable to conclude the contract at the expected time and the potential for an unfair dismissal claim If there are several posts ending, for example three audit funded posts ending at 31 August and the School has one new (similar) post commencing on 1 September, all three fixed term employees should be ring-fenced for selection into it. 12. Redundancy Definition 12.1 In law, a redundancy situation only occurs when there is a: cessation of a service; or closure of a workplace; or a reduced need for employees of a particular kind Consequently, not all fixed term contracts that end will qualify for a redundancy payment. For example, if a fixed term contract covers maternity leave and the employee covering the maternity leave is dismissed when the substantive postholder returns to work, there is no redundancy situation because the requirement for the work being undertaken has not been reduced For fixed term contracts which are offered due to external funding, the role ceases when the funding stops (this includes audit-funded contracts where the role ceases upon the child leaving the school or the funding stopping) there will be a redundancy. 13. Redundancy Pay and Associated Pension Costs IMPORTANT Please note funding implication for schools 13.1 Where the reason for the termination is the expiry of a fixed term contract due to reduction or ceasing of work (i.e. redundancy) and the employee does not secure alternative work, the School will need to check their eligibility to receive a redundancy payment upon the ending of their employment. 9

10 13.2 Where the employee is eligible to receive a redundancy payment, this will be funded from the School s budget. Please refer to Funding of Termination of Employment Costs Policy 13.3 The fixed term employee will not be eligible for a redundancy payment if they are offered another job before the end of their employment within the Local Authority and start that new job within 4 weeks. If the school is in any doubt about whether a redundancy payment is due, please consult Payroll and Schools HR in good time AHEAD of the time needed to issue notice In addition to redundancy pay the School will also fund the additional pension costs where the employee is aged 55 or over and a member of the Local Authority Pension Scheme (Avon Pension Fund) or the Teachers Pension Scheme, where these apply. For support staff this is a payment to the Avon Pension Fund (via Payroll) for up to 5 years to reflect the additional strain on the scheme s funds from the redundancy dismissal as these employees can access their pensions early. For teaching staff, the school would be required to pay additional costs for the life of the pension. The School should seek advice from the Payroll Section about these on costs to factor into budget management It is the responsibility of the School to record on T2s/S2s if a redundancy payment is required in sufficient time to enable Payroll colleagues to process these. Copies of notice letters should be attached. 14. Selection for Redundancy 14.1 Fixed term employees should not be selected for redundancy purely because they are on a fixed term contract as this could constitute less favourable treatment under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations The School should therefore ensure that where fixed term employees are selected for redundancy on the basis of their fixed term status, there is objective justification to support this selection. e.g. an audit funded fixed term post is set up to support a named child, the funding comes to an end or the child leaves the School and the support is no longer required. Both events would potentially provide justification for selecting the fixed term employee appointed to the post for redundancy. In these circumstances the School will follow the dismissal procedure set out within the Fixed Term Contracts Policy If there is more than one employee undertaking the type of work that is to be reduced/ceased, and there is no objective justification for separating out those employees on fixed term contracts, then all these staff, regardless of whether fixed term or permanent, should be placed in a redundancy selection pool and the School s Redundancy Procedure applied. 15. Redeployment procedure for staff at risk of redundancy 15.1 School-based staff who are made redundant from fixed term contracts in schools may be eligible for the redeployment process operating within the Council. Please contact Corporate colleagues via the central Recruitment Team for information about this Scheme. 10

11 APPENDIX A ADVERTISEMENT PRO-FORMA To: Date: Ledger Code: educationadverts@n-somerset.gov.uk Hannah Breakey / Julie Madsen Schools Human Resources From: DFE No: Fund Code: ADVERT FOR : (School Name) POST ADVERTISED: Bulletin Date ADVERTS FOR INTERNAL BULLETIN Duration advert to feature in bulletin (i.e. One week, two weeks) EXTERNAL ADVERTS PUBLICATION: Evening Post Group of Papers TES & Website (Please note each bullet point represents a package) TES Website only Jobsgopublic Website For all external adverts please ensure the fund code, Midweek Mercury ledger code and school DFE number is provided in Weston Mercury and North Somerset allocated boxes above. Times (Delete if not required) INSERT DATE: POSITION and PACKAGE (TES only - please specify exact section you want your advert to appear in including any cross sections, Bronze, Silver or Gold Package): Deadlines for adverts to be received: Tuesday 4pm (to appear Wednesday one week later) Deadlines for Queries to be resolved: Noon the Wednesday before the advert is due to be published / appear For HR Use Only Log Summary Redeploy Acknowledgement Bulletin External Complete 1

12 Please ensure you include the following detail when compiling your advert: School Name and Address Tel/Fax No/ address/website Job Title and Grade Hours and Weeks (Term Time Only, etc) Number of Inset days (indicate if none) Start date (and end date if applicable (ie for Fixed Term Contracts)) If Fixed-term contract and reason (see FTC Guidance) Brief details about the Job Brief details about the school (optional) How to apply/get further information (e.g. whether by phone/ /post) note: only quote actual phone number, address here if different from above Closing Date Anticipated Interview Date For external adverts, please ensure that you attach your logos as JPEGs to your requesting advertisement. Advert: School: Hours: Contract: Salary: Actual Salary: Please type your advert text here. Closing date: Interview date: Address: Tel: Fax: Web: If you have any queries please contact Schools HR on

13 APPENDIX B MODEL LETTER INVITATION TO MEETING TO DISCUSS END OF FIXED-TERM CONTRACT Dear XXXXXX RE: FORTHCOMING END OF YOUR FIXED TERM CONTRACT As you are aware, your fixed-term contract as XXXXXX (job title) is due to end on XXXXXX (date) due to XXXXXX (reason stated in the contract). This letter is to formally advise you that we are expecting your contract to conclude on this date and this means that your employment with us will then come to an end. I would, therefore, like to meet with you on XXXXXXXX(date) at XXXXXX (time) in XXXXXXXXXXXX (venue) so that I can discuss the implications of this with you. You are welcome to bring your trade union/professional association representative or a work colleague from this school with you to the meeting, if you wish. I will take into consideration any representations you wish to make at our meeting before reaching a final decision regarding the ending of your fixed term contract. Please confirm that you are able to attend by XXXXXX (date). If you do not wish to meet to discuss the concluding of your contract, please sign and return the slip below to me. Yours sincerely Head teacher/manager. To: Head teacher/manager I acknowledge that I have been offered the opportunity to discuss my fixed term contract ceasing with effect from XXXX(date). I confirm that I do not wish to attend the proposed meeting to discuss this as I accept the decision to end my contract.. Signed. Name Date. 1

14 APPENDIX C Name of employee Job title Contract start date Contract end date Reason for contract ending END OF FIXED TERM CONTRACT MEETING FORM Details of any vacancies in the School Is the employee eligible to be ringfenced? Brief details of discussion and outcomes Signed by manager/head teacher Signed by employee Date of meeting 2

15 APPENDIX D MODEL LETTER FORMAL NOTICE LETTER TO END FIXED TERM CONTRACT Dear XXXXXX RE: FORMAL NOTICE TO END FIXED TERM CONTRACT Further to our meeting held on XXXXXX (date) when we discussed the expiry of your fixed term contract due to XXXXXX, (reason stated in contract), I am now writing to give you formal notice that your contract will end on XXXXXX (date). If contract ending due to redundancy and employee eligible to receive a redundancy payment then insert following wording: I confirm that you are eligible to receive a redundancy payment which is based on your age and length of service. This payment will be paid along with your final salary payment. If contract ending due to redundancy and employee eligible to receive a redundancy payment then insert following wording If you are considering re-employment with a Local Authority, in order to satisfy the Local Government Regulations, it is essential that there is a clear break in your service in order to keep the redundancy payment that you will be issued with. The redundancy Payments (Local Government) (Modification) Order 1983, states that before the end of your contract you should not receive an offer of employment in Local Government or related service to commence within 28 days after the end of your contract. If contract ending due to redundancy but employee already has another LA job: As you have obtained an alternative Local Authority role, due to the terms of the redundancy Payments (Local Government) (Modification) Order 1983 you will not be entitled to a redundancy payment. You have a right of appeal against this decision to a panel of governors. If you wish to appeal, you should do so in writing to me stating your grounds of appeal, within 10 working days from the date of this letter. I would like to take this opportunity to thank you for all your hard work at XXXXXX (name of school) and to wish you every success in the future. (Personalise as appropriate) Yours sincerely Head teacher/manager 3

16 APPENDIX E MODEL LETTER Dear XXXXX RE: PERMANENT APPOINTMENT TO XXXXXX POST I am pleased to inform you that as you have been in your post for one year / more than one year [delete as appropriate] and the role which you were undertaking is ongoing, the School would like to offer you a continuing contract on a permanent basis. Therefore further to our meeting on XXXXX, I am writing to confirm that your post as a XXXXXX is being / has been [delete as appropriate] made permanent with effect from XXXXX. OR I am pleased to inform you that as you have been in your post of XXXXXXXXXX for four or more years and your fixed term contract has been renewed on one or more occasions, your contract has been made permanent with effect from XXXXXXXXXX. Your hours of work will remain the same and all of your terms and conditions will be unaltered Yours sincerely Headteacher / manager 4