Comment / Changes / Approval 1.0 Final Existing Fixed Term Contract Policy from NHS Devon. 1.1 Jul 2011

Transcription

1 Document Control Title Fixed Term Contract Policy Author HR Manager Author s job title HR Manager Directorate Workforce & Organisational Development Department Human Resources Version Date Issued Status Comment / Changes / Approval 1.0 Final Existing Fixed Term Contract Policy from NHS Devon. 1.1 Jul 2011 Revision A draft updated and combined NHS Devon and NDHT Fixed Term Contract Policy was tabled at JNCC for discussion. Further revisions required. 1.2 Jan 2012 Revision Reviewed at HR Policy Review Meeting on 31 st January. Minor amends made to abbreviations. 1.3 Feb Revision Tabled at Partnership Forum on 10 th February for approval Mar Jul 2012 Final Revision Harmonised policy as a result of the merging of Northern Devon Healthcare NHS Trust and NHS Devon community services. Approved by Partnership Forum on 13 th March 2012 following consultation. A summary of key issues and differences is on page 3. Minor amendments by Corporate Governance to document control report, formatting for document map navigation and table of contents, headers and footers. 3.0 Feb Review Revised for consideration at Pay & Reward Sub-Group Mar 2016 Final Revised following Pay & Reward Sub-Group for ratification by Partnership Forum 3.2 May 2016 Final Ratified by Partnership Forum. Typing errors corrected. Main Contact Assistant Director of HR (Community) Unit 1, Exeter International Office Park Clyst Honiton, Exeter, EX5 2HL Lead Director Director of Workforce & Organisational Development Superseded Documents Fixed Term Contract policy, NHS Devon / Devon Provider Services (v1 2011) Issue Date June 2016 Review Date June 2019 Review Cycle Three years Consulted with the following stakeholders: (list all) Equality & Diversity Lead Staff-side contract policy\fixed Term Contract Policy V3.2 May16 (WEB).docx Page 1 of 23

2 Approval and Review Process Pay & Reward Sub-Group Partnership Forum Local Archive Reference H:\HR Admin Local Path HRAdmin\Policies,Personnel folder Filename Fixed Term Contract Policy v 3.2 Policy categories for Trust s internal website (Bob) Human Resources, Workforce, Personnel, Development Tags for Trust s internal website (Bob) Temporary, Termination contract policy\fixed Term Contract Policy V3.2 May16 (WEB).docx Page 2 of 23

3 CONTENTS Document Control Introduction Purpose Definitions... 5 Fixed Term Contract... 5 Fixed Term Contract v- Acting up & Secondment opportunities... 5 Fixed Term Employee... 6 Objective Justification Roles & Responsibilities... 7 Role & Responsibilities of the Chief Executive... 7 Role & Responsibilities of the Workforce & Organisational Development Directorate/HR Operations Team... 7 Role & Responsibilities of Line Managers... 8 Role & responsibilities of Trade Union Representative... 9 Role & Responsibilities of workplace colleague Duration of Fixed Term Contracts Termination of a Fixed Term Contract on Expiry Notification Step Step Step Timescales Premature termination of a Fixed Term Contract Notice clause Consultation Step Step Step Step Performance and Conduct Issues Maternity Organisational Charge Permanent Vacancies Equality Impact Assessment Consultation, Approval and Ratification Process Consultation Process Policy Approval Process Associated Documentation Appendix 1 - Fixed Term Contract Flowchart Appendix 2 Appeal Procedure for termination of Fixed Term Contract Appendix 3 - Equality Impact Assessment Screening Form contract policy\fixed Term Contract Policy V3.2 May16 (WEB).docx Page 3 of 23

4 1. Introduction 1.1. This document sets out Northern Devon Healthcare NHS Trust s arrangements for the use of Fixed Term Contracts of employment. It provides a robust framework to ensure a consistent approach across the whole organisation, and supports the Trust s statutory duties as set out in the NHS Constitution. 2. Purpose 2.1. This policy applies to all Trust employees who are engaged on fixed term contracts of employment and provides guidance regarding the rights and status of fixed term employees as provided by the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (2002). The policy has been developed to ensure transparency of employment status between the Trust and the individual being appointed on a fixed term contract so that both parties are aware of the basis on which the contract exists The Trust Board is committed to the promotion of long term security of employment and to that end, has determined that fixed-term contracts of employment should only be used for the genuine organisational reasons listed below. Any exceptional variation must be approved by the relevant Assistant Director of HR or the Director of Workforce & Organisational Development Appropriate reasons for fixed term contract appointments: 2.4. Covering maternity Leave The provision of "cover" for extended absence from work of a substantive (permanent) employee, through maternity leave Covering sickness The provision of cover for extended absence from work of a substantive (permanent) employee, through sickness absence Covering other absence The provision of "cover" for extended absence from work of a substantive (permanent) employee, e.g. through internal or external secondment or absence through the employment/career break scheme 2.7. Limited term project When there is a distinct and discrete assignment that the Trust requires to be completed and a project is set up to deliver an outcome by an expected date E.g. for specific operational contracts with a finite completion date such as research and development programmes and service redesign / development projects Organisation Change The management of organisational change, i.e. to retain vacant substantive positions in order to re-deploy permanent staff due to service redesign Short term funding When the funding for the role is short term only and not a recurring expenditure within a budget. contract policy\fixed Term Contract Policy V3.2 May16 (WEB).docx Page 4 of 23

5 2.11. For training purposes E.g. when issued for a specific period of training; for specific operational contracts, i.e. research and development, projects, pilot schemes etc The above list is not intended to be exhaustive and other circumstances may arise where the use of a fixed term contract is deemed to be appropriate. Advice on the issuing of fixed term contracts should be sought from Human Resources A flowchart summarising the key process steps for Fixed Term Contracts is attached at Appendix Definitions Fixed Term Contract 3.1. A fixed term contract means a contract of employment that, under its provisions dealing with how it will terminate in the normal course, will terminate on the: Expiry of a fixed term. Completion of a particular task, or Occurrence or non-occurrence of a specific event Furthermore, the Trust may terminate a fixed term contract prematurely by issuing the relevant period of notice to the employee or for example by following a disciplinary or capability process as appropriate which may or may not require notice to be provided. Managers must seek advice from Human Resources before prematurely terminating a fixed term contract. Fixed Term Contract v- Acting up & Secondment opportunities 3.3. The Trust from time to time offers Acting Up and Secondment opportunities to its substantive employees within the arrangements provided by the Agenda for Change Handbook and the Trust s Acting Up & Secondment Policy. Acting Up and Secondments are temporary deployments to alternative posts. The employee retains their permanent employment status and retains the right to return to their substantive post(s) at the end of the fixed period of Acting Up or Secondment or, in the case of longer-term secondments, to a suitable alternative post. Acting Up and Secondment opportunities are not Fixed Term Contracts and it is expected that the employee will have either the option to return to their own or a similar role within the Trust at their expiry Substantive employees who wish to apply for a fixed term contract ie a contract that will expire at the end of its natural term may do so but enter into the arrangement at their own risk. This may occur where it has been deemed not practical or appropriate to support the employee in taking up the opportunity on an Acting Up or Secondment basis. contract policy\fixed Term Contract Policy V3.2 May16 (WEB).docx Page 5 of 23

6 3.5. Any existing substantive member of staff wishing to take up a fixed term contract will need to resign their substantive post, take a two week break in service and enter into the fixed term contract as though they were an external candidate. There is no guarantee at the end of the fixed term contract that someone who was previously a substantive post-holder will be offered or be successful in their application for either another fixed term contract or substantive employment opportunities with the Trust Employees considering resigning from a substantive post to take up a fixed term contract are strongly advised to contact Human Resources to discuss the implications The Recruitment Team will, so far as is possible, monitor existing staff who apply for and are successful in obtaining a role that is defined as a Fixed Term Contract and direct the employee to liaise with Human Resources before making a final decision on the offer. Fixed Term Employee 3.8. Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (2002) 3.9. The Fixed-term Employees Regulations, which came into force in 2002, implemented Directive 99/70/EC of June 1999 on the Framework Agreement on Fixed-term Work (the Directive). The Directive was designed to prevent the less favourable treatment of fixed-term employees as compared to permanent employees. The Fixed-term Employees Regulations introduce the concept of parity of treatment between fixedterm employees and comparable permanent employees. Fixed-term employees are entitled not to be treated less favourably than comparable permanent employees by reason of their fixed-term status, unless the employer is able to objectively justify the different treatment. Objective Justification An employer may be able to treat fixed-term employees less favourably than permanent staff if it can "objectively justify" the treatment. Less favourable treatment is regarded as justified on objective grounds if the terms of the fixed-term employee's contract of employment, taken as a whole, are at least as favourable as the terms of the comparable permanent employee's contract of employment (Regulation 4, Fixed-term Employees Regulations). In order to objectively justify less favourable treatment employers will be required to show that the treatment in question is: To achieve a legitimate aim Necessary to achieve that aim; and An appropriate way to achieve that aim. contract policy\fixed Term Contract Policy V3.2 May16 (WEB).docx Page 6 of 23

7 3.11. Fixed-term employees have the right to request a written statement of the reasons for any less favourable treatment from their employer (Regulation 5, Fixed-term Employees Regulations). The request must be in writing and the employer must respond within 21 days Employers should provide full reasons for any actual difference in treatment, or a denial with an explanation if the difference is wrongly perceived by the employee. Employers should explain, for example, whether they have undertaken any audit of fixed-term employees' terms of employment, and whether any aspect of the fixedterm employee's package is designed to compensate them for any benefit given to permanent staff which they have not been given Fixed term contracts should not be used as a probationary period. The Trust has a process in place that enables managers to address the poor performance of an individual employee, whether permanent or fixed term, that makes such measures unnecessary, and unless the use of probationary periods was adopted for all permanent employee appointments, it could be considered as less favourable treatment. 4. Roles & Responsibilities Role & Responsibilities of the Chief Executive 4.1. The Chief Executive has the overall responsibility for all matters of Human Resources and ensuring that all mechanisms are in place for the overall implementation, monitoring and revision of this Policy. The Chief Executive has nominated the Director of Workforce & Organisational Development as lead for all Human Resources matters. Role & Responsibilities of the Workforce & Organisational Development Directorate/HR Operations Team 4.2. It is the role of the Workforce & Organisational Development Directorate / HR Operations Team to ensure that employees and line managers receive appropriate advice and guidance in the implementation of this policy. The Directorate is also responsible for providing assurance that this policy has been adhered to in safeguarding the Trust against claims for unfair dismissal or unfavourable treatment The Directorate will carry out monthly monitoring of the status of fixed term contracts via the Employee Staff Record (ESR) to ensure that managers are able to appropriately manage the termination of fixed term contracts due to expire. The HR Representative will, in conjunction with the line manager, determine the appropriate action to take in line with this Policy. contract policy\fixed Term Contract Policy V3.2 May16 (WEB).docx Page 7 of 23

8 Role & Responsibilities of Line Managers 4.4. Line Managers are responsible for implementing this Policy when recruiting staff to a fixed term contract and in their management of these staff during the course of their employment. Managers should ensure: That fixed term contracts are being issued for an appropriate reason. That fixed term contracts are not issued, or extended, for more than two years without consulting Human Resources for further advice. When considering the duration of a fixed term contract or considering renewing or extending a fixed term contract, managers need to take into account any continuous additional service which an employee may have gained within the NHS. This is employment with another NHS organisation immediately prior to being employed by the Trust. In order to qualify for continuous service there must be a gap of no more than one week (ending on a Saturday) between the previous employment and joining the Trust. A number of individuals take annual leave prior to starting with a new employer and therefore the date they stopped going to work at the previous Trust may differ from their actual termination date. It is therefore essential to confirm the previous termination date of an NHS employee. That there is a break of at least two weeks (14 calendar days) between the end of any previous employment within the NHS (see above) and the commencement of a fixed term contract with the Trust. That when recruited the individual is aware of the reason for the fixed term contract and that at the end of the contract it is expected that employment will be terminated with no automatic offer of redeployment and this should be highlighted during the recruitment process. That the employee is made aware in writing that notice to terminate the fixed term contract is issued at the time the fixed term contract is awarded. Therefore, unless the fixed term contract is extended through the appropriate Approval to Recruit (ATR) process their employment will terminate on that date regardless of whether or not further formal notice is provided to them. The employee is made aware that the Trust reserves the right to terminate the contract prematurely. That advice is sought from an HR Representative prior to termination of a fixed term contract. That the employee is contacted at the appropriate point before the end date of the fixed term contract and the correct procedures are followed regarding the termination of a fixed term contract. That they inform Payroll (Termination Form) at least one month prior to termination of the fixed term contract. Managers must offer an exit interview. The process set out in the Trust s Leavers Policy must be followed in its entirety for employees leaving at the end of a fixed term contract. contract policy\fixed Term Contract Policy V3.2 May16 (WEB).docx Page 8 of 23

9 That they complete an ATR form and submit this via the normal ATR route(s) should any fixed term contract need to be extended. That they inform IT if a fixed term contract is extended, to ensure access to and IT systems are not discontinued. That they manage the annual leave of a fixed term employee proactively. Annual leave accrues in the normal way for employees on a fixed term contract. All annual leave must be taken during the employment period. Any annual leave not taken during the employment period should be paid in lieu but this should only occur in exceptional circumstances. Payment in lieu of annual leave will not extend the contract period. If in any doubt, the line manager should consult with HR. Role & responsibilities of Trade Union Representative 4.5. The trade union representative may be asked by the fixed term employee to accompany them to their fixed term contract termination meeting They should be familiar with and work with the policy and its requirements and will be consulted with as part of the regular review of this policy. Role & Responsibilities of workplace colleague 4.7. In place of a Trade Union Representative, staff may choose to be accompanied by a workplace colleague at the fixed term contract termination meeting. 5. Duration of Fixed Term Contracts 5.1. Fixed term contracts of employment should not be issued for a period in excess of 12 months without consulting Human Resources for advice. Any extension to an existing fixed term contract must be made via the Vacancy Approval procedure in place at the time Under Regulation 8 of the Fixed-Term Employees Regulations, employees who have been continuously employed for four years or more on a series of successive fixedterm contracts are automatically deemed to be permanent employees (that is, employed on an indefinite contract) unless the continued use of a fixed term contract can be objectively justified This includes cases where the original contract has been renewed or extended, or where a different contract has been entered into after the expiry of the original contract (Regulation 8(1)). It does not include cases where there has only been one fixed-term contract (of whatever duration) that has not been renewed or extended. contract policy\fixed Term Contract Policy V3.2 May16 (WEB).docx Page 9 of 23

10 5.4. Where a fixed term contract expires on the completion of a particular task or the occurrence or non-occurrence of a particular event, the termination is to be treated in law as a dismissal. Consequently, after two years continuous employment, employees employed under these types of contracts will be entitled not to be unfairly dismissed and have the right to a written statement of reasons for dismissal. 6. Termination of a Fixed Term Contract on Expiry 6.1. A fixed term contract will be deemed to automatically terminate on the expiry date unless extended by prior agreement. Fixed term contracts are set up as such in ESR with an expiry date and notice of termination will be given at the time the contract is set up That notwithstanding, best practice indicates that a formal process to end the fixed term contract should be followed and this normally occur unless there are appropriate and acceptable reasons not to do so. As part of the process managers should ensure that employees on fixed term contracts who are within three months of the termination date are made aware of vacancies within the Trust via the Trust s Intranet (for internal vacancies) and via nhs.jobs As termination of a fixed term contract amounts to a dismissal under employment law the reason for the dismissal and whether the employee has accrued the right not to be unfairly dismissed are important considerations. If the reason is not clear or the date is before the natural end date of the fixed term contract or the employee has been employed for over 2 years advice must be sought from HR Managers should refer to the employee s contract of employment for relevant notice periods. This is particularly important as notice periods may vary depending on the date the fixed term contract was entered into Where there is a notice clause in the contract, which allows the contract to be terminated on notice, the Trust will pay the notice period only The Trust reserves the right to make payment in lieu of notice. Notification 6.7. Prior to any consideration to terminate the Fixed Term Contract upon its natural expiry, the manager must be satisfied that the fixed term worker has been notified of any suitable vacant permanent posts and has had the opportunity to apply for appropriate vacancies That being the case, the manager must take the following steps in order to confirm termination of the contract (formal notice having been issued at the time the contract was issued and/or extended), having sought input from their HR Representative: contract policy\fixed Term Contract Policy V3.2 May16 (WEB).docx Page 10 of 23

11 Step Notwithstanding the fact that formal notice of expiry was issued at the time the fixed term contract was issued and/or extended, it is recommended that at least 4 weeks prior to the commencement of the contractual notice period, so, for example, two months before the end date for a Band 3 worker, to ensure both the individual and the line manager are clear on expectations and the circumstances of the termination The timeline will depend on the notice period in force at the time for the role/band of the fixed term employee. It is important that the manager checks the appropriate timeline and monitors and manages the termination process against the notice period for the contract end date The manager must write to the employee confirming the expiry of the fixed term contract and that consideration is being given to termination/dismissal upon expiry. The letter must invite the employee to a meeting to discuss the matter and advised that they will be entitled to be accompanied at the meeting by a trade union representative or workplace colleague (see letter in Toolkit associated with this Policy) Employees should be encouraged to seek advice from their Trade Union Representative If the fixed term employee will have more than two years continuous employment with the Trust or the NHS at the time the fixed term is likely to end, or the fixed term will terminate in the two weeks prior to 2 years continuous service being obtained, then managers must take advice from HR before speaking to the employee. Step The manager must next hold a meeting to discuss the reasons for the termination of the fixed term contract upon expiry. Whilst the presence of an HR Representative is not essential at this meeting, advice should be sought from the HR Department before proceeding At the meeting the employee and/or their representative must be afforded the opportunity to respond/challenge the manager s decision At the end of the meeting, the manager must advise the employee of their decision, of the right to appeal against the decision to the next more senior level of management and that the decision will be confirmed in writing (see letter in Toolkit associated with this Policy). The manager must complete and submit a Termination form to Payroll. contract policy\fixed Term Contract Policy V3.2 May16 (WEB).docx Page 11 of 23

12 Step If the employee wishes to appeal they must confirm this in writing to the Director of Workforce & Organisational Development, stating the reasons for their appeal, within 10 working days of the Step 2 meeting The Appeal will be conducted in accordance with the procedure set out in Appendix The employee will be entitled to be accompanied by a trade union representative or workplace colleague. Having heard from both parties the Chair of the Appeal Panel will, after taking HR advice, advise the employee of the final decision and subsequently formally confirm in writing. Timescales Importantly, if the final decision is to proceed with termination of the fixed term contract upon its natural expiry, this three step process should be completed in sufficient time to enable the employee to be afforded their proper entitlement to the statutory or contractual notice period (whichever is greater). 7. Premature termination of a Fixed Term Contract Notice clause 7.1. Managers should refer to the employee s contract of employment for relevant notice periods. This is particularly important as notice periods may vary depending on the date the fixed term contract was entered into Where there is a notice clause in the contract, which allows the contract to be terminated on notice, the Trust will pay the notice period only The Trust reserves the right to make payment in lieu of notice. Consultation 7.4. Managers should consult with their HR Representative prior to taking any action to prematurely terminate a fixed term contract These steps should be followed when a Fixed Term Contract is to be terminated prior to the expiry date within the Fixed Term Contract: Step The manager must write to the employee advising them of the intention to bring forward the termination date of the contract including the new expiry date The letter must invite the employee to a meeting to discuss the premature termination. contract policy\fixed Term Contract Policy V3.2 May16 (WEB).docx Page 12 of 23

13 7.8. The new expiry date must allow for the appropriate length of notice period to be given as contained within the contract of employment The employee should be advised that they will be entitled to be accompanied by a Trade Union Representative or workplace colleague (see letter in Toolkit associated with this Policy). Step At the meeting the manager must: 1. Explain the reasons for the early termination of the fixed term contract e.g. early return of an employee from maternity/family leave or career/employment break. 2. For employees engaged on fixed term contracts there is no legal requirement for the Trust to offer redeployment. The manager should, however, make the employee aware of the location of vacancy bulletin boards on the Trust s intranet and should they wish to apply of any vacancies at that time. 3. Afford the employee and/or their representative the opportunity to challenge the manager s decision. 4. At the end of the meeting, the manager should confirm their decision. 5. The manager must advise the employee of their right to appeal against the decision. Step If the decision is to proceed with the termination of the contract, confirmation not to renew the fixed term contract and details of how to appeal should be put in writing and sent to the employee as soon as reasonably practical after the meeting (see letter in Toolkit associated with this Policy) A termination form must be completed and submitted to Payroll by the manager. Step If the employee wishes to appeal they must confirm this in writing to the Director of Workforce & Organisational Development, stating the reasons for their appeal, within 10 working days of the Step 2 meeting An Appeal Hearing will then be arranged in accordance with the Appeal Procedure set out in Appendix 2 to this Policy. The employee will again be entitled to be accompanied by a trade union representative or workplace colleague. contract policy\fixed Term Contract Policy V3.2 May16 (WEB).docx Page 13 of 23

14 7.15. Having heard from both parties appeal (the manager and the employee) the Chair of the Appeal Panel will, after taking HR advice, advise the employee of the final decision and subsequently formally confirm in writing. 8. Performance and Conduct Issues 8.1. Any concerns regarding a fixed term employee s performance or misconduct must be managed in a timely manner and in line with the normal process under either the Trust s Capability Policy or Disciplinary Policy (or other Policy as deemed appropriate e.g. Bullying & Harassment Policy). 9. Maternity 9.1. Please refer to the Trust s Family Leave and Pay Policy which details the provisions applicable to pregnant staff/new mothers on Fixed Term Contracts. 10. Organisational Charge By accepting a fixed term appointment employees confirm full awareness and acceptance of employment on a purely fixed term basis Employees acknowledge that they have been employed for a limited term only and may have been recruited by the Trust during or because of a period of organisational change and that they are aware that fixed term contracts may be terminated early (by the Trust or the employee on giving the required written notice). The management of organisational change may require fixed term contracts to be terminated prematurely in order to re-deploy permanent staff e.g. due to service redesign The Trust is not obliged to extend the duration of any fixed term appointment and employees should have no expectation that the appointment will be extended or renewed. Nevertheless, the Trust reserves the right to extend or offer a further period of fixed term employment (or substantive contract) should this be operationally necessary Employees accepting a fixed term appointment acknowledge that on the termination of their fixed term contract they shall not be entitled to receive a redundancy payment except in circumstances where the fixed term contract is terminated on grounds of redundancy, the necessary statutory conditions regarding length of service is met and no suitable alternative employment is available. Where a fixed term employee is being dismissed due to redundancy this should be managed in line with the Trust s Organisational Change Policy Employees on fixed term contracts acknowledge that on the termination of their fixed term contract they shall not be automatically entitled to be redeployed by the Trust into another role. contract policy\fixed Term Contract Policy V3.2 May16 (WEB).docx Page 14 of 23

15 11. Permanent Vacancies Fixed-term employees have the right to be informed of any permanent vacancies in the establishment at which they work (Regulation 3 (6), Fixed-term Employees Regulations). Trust vacancies are advertised via and the Trust Vacancy Bulletin on the Trust s intranet on a weekly basis. 12. Equality Impact Assessment The Trust aims to design and implement services, policies and measures that meet the diverse needs of our service, population and workforce, ensuring that none are placed at a disadvantage over others. An Equality Impact Assessment Screening has been undertaken and there are no adverse or positive impacts (see Appendix 3). 13. Consultation, Approval and Ratification Process Consultation Process The author consulted widely with stakeholders, including: Equality & Diversity Lead Pay & Reward Sub-Group Partnership Forum Consultation took the form of a full discussion at appropriate meetings. Policy Approval Process Approval of the policy will be sought from the Partnership Forum The policy does not require ratification by the Trust Board. 14. Associated Documentation Disciplinary Policy Capability Policy Redeployment Procedure Family Leave and Pay Policy Organisational Change Policy Recruitment and Selection Policy contract policy\fixed Term Contract Policy V3.2 May16 (WEB).docx Page 15 of 23

16 Appendix 1 - Fixed Term Contract Flowchart Manager identifies vacancy appropriate for a fixed term contract (FTC) (see reasons in Section 2) Manager completes necessary recruitment paperwork and submits request through appropriate Approval to Recruit (ATR) process The vacancy is approved for the appointment of a FTC FTC filled via recruitment process Monthly FTC report run from ESR detailing those contracts due to expire in the next 3 months. Report is sent to the relevant Line Managers and provided to HR Representatives. Managers seek advice from their HR Representative on their plans for managing the ending or extension of the FTC and identifies if any intervention is required. Manager reviews each FTC to determine if the contract will end as planned or whether an extension to the expiry date is necessary (see reasons in Section 2) Manager to progress one of the 3 options below: 1) Manager wants to extend FTC - Applies for ATR. - If approved, agree extension with employee, complete Change of Circumstances (CoC) form and place letter on file confirming reason for extension and new expiry date. - If not approved, arrange FTC termination meeting and follow appeals process if required and complete termination form for Payroll. OR 2) Manager wants to get approval for the post to become substantive - Applies for ATR - If substantive post is approved, proceed through full open advert and recruitment process and appoint preferred candidate through the standard Recruitment procedure. - If not approved, arrange FTC termination meeting and follow appeals process if required and complete termination form for Payroll OR 3) Manager wants the contract to end on the planned expiry date Step 1 At least 4 weeks before the contractual notice period manager writes to employee confirming consideration of termination and invites employee to a fixed term termination meeting. Employee entitled to be accompanied by Trade Union Representative or workplace colleague Step 2 Manager holds meeting and at end advises employee of decision. Manager confirms decision in writing and right of appeal. Step 3 If employee appeals, Appeal Hearing convened and heard by senior manager. - if appropriate Manager completes termination form for Payroll. contract policy\fixed Term Contract Policy V3.2 May16 (WEB).docx Page 16 of 23

17 Appendix 2 Appeal Procedure for termination of Fixed Term Contract 1 Lodging an Appeal 1.1 All appeals must be lodged in writing to the Director of Workforce and Organisational Development and be received within 10 working days of the date of the meeting where the decision under appeal was notified, unless a longer timeframe is agreed at the original meeting. All appeals must also be copied to the manager who made the initial decision. In the exceptional circumstances where the outcome of a fixed term contract termination meeting was not given at the meeting and was only notified in writing then the deadline shall be 10 working days from the date of the letter/communication containing the outcome of the meeting at which the termination of the fixed term contract was considered. The date by which the written notice of appeal must be lodged with the Director of Workforce and Organisational Development should be stated in the letter confirming the outcome the termination of fixed term contract meeting. 1.2 The written appeal must include a clear and detailed statement of the issues such as:- Whether the procedure was followed correctly Whether the action taken or outcome reached was fair and reasonable Whether the action taken or outcome reached was within the band of reasonable responses The written appeal should include the employee s desired outcome. 2 Responding to an Appeal 2.1 The Director of Workforce and Organisational Development will acknowledge receipt of the appeal and will put in place arrangements for the appeal hearing to be held. 2.2 All appeals lodged will be heard as soon as possible, ideally within 28 working days from the date that the appeal notification is received, unless an extension to this period is agreed by both parties. 3 Right to be accompanied 3.1 The employee has the right to be accompanied by either a trade union representative or a workplace colleague at the appeal hearing. 3.2 The manager who made the initial decision (the Trust s representative at the appeal) may be accompanied by an HR Representative. 4 Constitution of the Appeal Panel 4.1 An Appeal Panel will be selected specifically for the appeal; membership will normally be a Senior Manager (not previously involved in the decision making) and a Human Resources representative. 4.2 The senior manager will act as Chair. contract policy\fixed Term Contract Policy V3.2 May16 (WEB).docx Page 17 of 23

18 5 Appeal Hearing Procedure All Appeal Hearings will be undertaken in accordance with the following process:- 5.1 General provisions: Any evidence from the employee in support of their appeal must be provided at least 7 working days before the appeal hearing. If the management side wish to make a written response to the information provided by the employee this must be submitted no later than 2 working days prior to the hearing. Consideration should be given to the provision of an interpreter or facilitator if there are understanding or language difficulties on the part of the employee. This person may need to attend in addition to the trade union representative or workplace colleague though ideally one person should carry out both roles. Provision should be made for any reasonable adjustments to accommodate the needs of a person with disabilities. The Trust may at its discretion choose to make a digital audio recording of the proceedings at the Hearing. Alternatively notes will be taken and this may include a note-taker being present at the Hearing. 5.2 Introductions: The Chair of the Panel will: introduce the panel and then ask the employee and management sides to introduce themselves confirm the Hearing is being held in accordance with the Trust s Fixed Term Contracts Policy summarise the steps below explain any housekeeping issues check that both sides are in possession of all paperwork pertinent to the case summarise the grounds of appeal to set the scene. 5.3 The Case in support of the Employee: The employee or their representative shall put their appeal case to the Hearing Panel, in the presence of the Trust s representative i.e. management side. The employee may call witnesses in support of their case. The Trust s representative shall have the opportunity to ask questions of the employee, their representative and any witnesses. In circumstances where the Trust s representative wishes to ask questions of any witnesses, these should be directed through the Chair of the Panel. This is to avoid the witness feeling harassed or intimidated by cross questioning. It is for the Chair of the Panel to decide whether questions can be allowed. contract policy\fixed Term Contract Policy V3.2 May16 (WEB).docx Page 18 of 23

19 The Hearing Panel shall have the opportunity to ask questions of the employee, their representative and any witnesses. The employee will have the opportunity to ask their witnesses further questions on any matter that has been raised in this stage of the hearing. Witnesses for the case in support of the employee will be present only when required to be and shall withdraw immediately afterwards. However, if necessary, they must be readily available for recall until the Hearing is concluded. 5.4 The Case in support of the Trust The Trust s representative will present the Trust s management case to the Hearing Panel, in the presence of the employee and their representative, and may call witnesses. The employee or their representative will have the opportunity to ask questions of the Trust s representative and any witnesses they have called. In circumstances where the employee and/or their representative wish to ask questions of any witnesses, these should be directed through the Chair of the Panel. This is to avoid the witness feeling harassed or intimidated by cross questioning. It is for the Chair of the Panel to decide whether questions can be allowed. The Hearing Panel will have the opportunity to ask questions of the Trust s representative and any witnesses. The Trust s representative will have the opportunity to ask their witness further questions on any matter that has been raised in this stage and the stage above. Witnesses for the case in support of the Trust will be present only when required to be and shall withdraw immediately afterwards. However, if necessary, they must be readily available for recall until the Hearing is concluded. 5.6 Summing Up The Trust s representative will have the opportunity to sum up their case if they so wish. The employee or their representative will have the opportunity to summarise their case or speak last. Neither party may introduce any new evidence/information at this stage. 5.7 Adjournments Either side may request an adjournment during the appeal hearing and should do so if time is needed to gather thoughts or if things take an unexpected turn. Permission should be sought through the Chair who will give timescales for adjourning and reconvening. The Hearing Panel may at their discretion adjourn the Hearing in order that further evidence may be produced by either party, or adjourn for any other reason. During an adjournment, the employee, their representative, the Trust s representative and all witness shall withdraw. 5.8 Reaching a decision: contract policy\fixed Term Contract Policy V3.2 May16 (WEB).docx Page 19 of 23

20 Nothing stated above will prevent the Hearing Panel from seeking amplification on any statement made or from asking questions to ascertain whether statements will be supported by evidence. Where it is identified that insufficient evidence has been submitted to support the case, or that a decision cannot be made due to lack of material evidence, then the Hearing Panel have the right to suspend a decision until appropriate evidence is provided. In such circumstances, the hearing will be reconvened at the earliest opportunity or the final decision will be communicated in writing. The Hearing Panel will deliberate in private only recalling both parties to clear points of uncertainty on evidence already given. If recall is necessary both parties shall return notwithstanding only one is concerned with the point giving rise to doubt. Where possible decisions will be made on the day of the Hearing and will be communicated to both parties by recall. Where this is impractical the Hearing Panel has discretion to make alternative arrangements (e.g. re-convene at a later date or inform outcome by telephone, or letter). Written confirmation of a decision will normally be provided within 5 working days and no longer than 7 working days from the appeal hearing unless an alternative agreed date is provided during the Hearing. The employee will be advised that the outcome of the appeal marks the end of the internal consideration of the case. 6 Possible Outcomes of appeal hearings: 6.1 The potential outcomes of an Appeal Panel are: To fully overturn the initial management decision To fully uphold the initial management decision To uphold aspects of the management decision and overturn others To recommend an alternative solution or outcome where all or part of a decision is overturned To recommend further investigation and reconsideration of the initial decision If the appeal is upheld, the process for approved requests (see relevant section above) will be followed. If the appeal is rejected, the written decision will give the business reason(s) for the decision and explain why the reason(s) apply. 6.2 The decision of the Appeal Panel will be final. 6.3 The Appeal Panel will normally confirm the outcome of the Hearing within 5 working days and no longer than 7 working days of the hearing unless an alternative agreed date is provided at the hearing. In exceptional circumstances the outcome may be provided in writing only; should this be necessary it will be agreed at the hearing. A copy of the outcome will be recorded on the employee s personal file. contract policy\fixed Term Contract Policy V3.2 May16 (WEB).docx Page 20 of 23

21 Appendix 3 - Equality Impact Assessment Screening Form Equality Impact Assessment Screening Form Title Author Directorate Team/ Dept. Fixed Term Contract Policy HR Manager Workforce & Organisational Development HR Operations Document Class Policy Document Status Review Issue Date June 2016 Review Date June What are the aims of the document? This document sets out Northern Devon Healthcare NHS Trust s arrangements for the use of Fixed Term Contracts of employment. It provides a robust framework to ensure a consistent approach across the whole organisation, and supports the Trust s statutory duties as set out in the NHS Constitution. 2 What are the objectives of the document? To provide guidance regarding the rights and status of fixed term employees as provided by the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (2002). To ensure transparency of employment status between the Trust and the individual being appointed on a fixed term contract so that both parties are aware of the basis on which the contract exists. 3 How will the document be implemented? Implementation of this document will ensure that managers and staff are aware of the appropriate reasons for fixed term contracts and that they used appropriately within the organisation. Managers will understand the steps they need to follow when ending a fixed term contract and the other Trust policies they may need to refer to when managing a fixed term member of staff. 4 How will the effectiveness of the document be monitored? The HR Team will monitor the effectiveness of the policy by reviewing the compliance of managers with the requirements set out within the Policy. The monthly report of fixed term contracts due to expire will allow the HR Representatives the opportunity to ensure compliance. 5 Who is the target audience of the document? All staff employed on fixed term contracts of employment. 6 Is consultation required with stakeholders, e.g. Trust committees and equality groups? Yes contract policy\fixed Term Contract Policy V3.2 May16 (WEB).docx Page 21 of 23

22 7 Which stakeholders have been consulted with? Equality & Diversity Lead for staff Pay & Reward Sub-Group Partnership Forum 8 Equality Impact Assessment Please complete the following table using a cross, i.e. X. Please refer to the document A Practical Guide to Equality Impact Assessment, Appendix 3, on the Trust s Intranet site (Bob) for areas of possible impact. Where you think that the policy could have a positive impact on any of the equality group(s) like promoting equality and equal opportunities or improving relations within equality groups, cross the Positive impact box. Where you think that the policy could have a negative impact on any of the equality group(s) i.e. it could disadvantage them, cross the Negative impact box. Where you think that the policy has no impact on any of the equality group(s) listed below i.e. it has no effect currently on equality groups, cross the No impact box. Equality Group Positive Impact Negative Impact No Impact Comments Age Disability Gender Gender reassignment X x X x Human Rights (rights to privacy, dignity, liberty and non-degrading treatment) x Marriage and civil partnership Pregnancy, maternity and breastfeeding Race / Ethnic Origins Religion or Belief Sexual Orientation x x x x x If you have identified a negative discriminatory impact of this procedural document, ensure you detail the action taken to avoid/reduce this impact in the Comments column. If you have identified a high negative impact, you will need to do a Full Equality Impact Assessment, please refer to the document A Practical Guide to Equality Impact Assessments, Appendix 3, on the Trust s Intranet site (Bob). For advice in respect of answering the above questions, please contact the Equality contract policy\fixed Term Contract Policy V3.2 May16 (WEB).docx Page 22 of 23

23 and Diversity Lead. 9 If there is no evidence that the document promotes equality, equal opportunities or improved relations, could it be adapted so that it does? If so, how? Completed by: Name HR Manager Designation HR Manager Trust Northern Devon Healthcare NHS Trust Date contract policy\fixed Term Contract Policy V3.2 May16 (WEB).docx Page 23 of 23