Fixed Term Contract Policy

Transcription

1 Policies Procedures & Guidelines Fixed Term Contract Policy Version: 2 Ratified by: Date ratified: July 2006 Name of originator/author: Lewisham Joint Staff Partnership Committee HR Department Date issued: July 2006 Review date: July 2011 Target audience: All staff

2 Version Control Reference LEW/HR/Fixed Term Contract Policy Date Approved July 2006 Approving Body JSPC Implementation Date July 2006 Version 2 Supersedes Version 1 Consultation Presented to JSPC Supporting Procedure All PCT policies and procedures with particular reference to the Recruitment and Selection Policy, Annual Leave Policy, Maternity Paternity and Adoption Policy, Exit Questionnaire and Interview Policy. Review Date July 2011 Lead Executive Author/Lead Manager Further Guidance Human Resources Department HR Manager ACAS, CIPD, DOH and NHS Employers Implementation Target audience All PCT Staff Implementation plan in place Yes Tools for dissemination & Intranet Date of dissemination July 2006 Monitoring Monitoring method Audit Frequency Annual Responsibility HR Department Reporting HR Department Page 2 of 15

3 Equalities Impact Assessment Screening Grid Note: See equalities impact assessment guidance notes on PCT website at before completion. Equality Group Race Disability Gender Age Sexual Orientation Religion or belief Deprivation Dignity and Human Rights Assessment of Impact Page 3 of 15

4 CONTENTS 1. INTRODUCTION DEFINITION OF FIXED TERM POLICY STATEMENT ACCESS TO SERVICES AND BENEFITS EQUAL TREATMENT CONTRACTUAL TERMS RENEWAL DATES AND EXPIRY OF CONTRACT Stage one Stage two Stage three REDUNDANCY Appendix 1: Fixed-term contracts (FTC) Checklist for managers Appendix 2: Fixed term contracts Sample letters Appendix 3: Fixed term contracts Guidance for employees Appendix 4: Frequent Questions and Answers...13 Page 4 of 15

5 1. INTRODUCTION This policy has been developed to comply with the Fixed Term Employee s (Prevention of Less Favourable Treatment) Regulations The main aims of the regulations are to: Prevent fixed term employees from being less favourably treated than comparable permanent employees. Limit the use of a series of fixed term contracts to employ the same person in a substantive post. Improve access to training and to information on permanent jobs for fixed term employees. The regulations also remove the possibility of including an employment rights waiver clause. 2. DEFINITION OF FIXED TERM A contract of employment that is due to end when a specified date is reached, a specified event does or does not happen, or a specified task has been completed. Under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, if an employee has four year s continuous service under a fixed-term contract (or contracts), the contract will be treated as if it is a permanent contract. The Regulations state that to be entitled to the permanent contract the employee must have been placed on two or more successive fixed-term contracts. 3. POLICY STATEMENT Lewisham PCT is committed to only using fixed term contracts where there is a genuine service need to do so which can be objectively justified. This is a complex area of law so before a fixed term contract is issued; the line manager must first seek advice on the implications from the HR Department. The PCT will normally only agree to a fixed term contract in the following circumstances: To cover periods of absence of longer than four weeks, such as maternity leave, parental and adoption leave, long-term sickness, career break or secondment. Where the post is created by time related funding and the funds are available for a specified period only. Where there is no reasonably foreseeable prospect of short-term funding being renewed or other external or internal funding being available or becoming available. To aid service delivery during a period of recruitment by providing a shortterm contract of no more than 3 months. Page 5 of 15

6 Following discussion with HR, however, a fixed term contract may be approved in the following circumstances: Where the post requires specialist expertise or recent experience not already available within the PCT in the short term. Where the appointment is made to complete a task within a stated period (project work). 4. ACCESS TO SERVICES AND BENEFITS Employees on fixed term contracts will be employed on the same terms and conditions as those enjoyed by comparable permanent employees and as per Agenda for Change. 5. EQUAL TREATMENT All employees on fixed term contracts are subject to the same policies and procedures as employees on substantive posts. Poor performance will not be accepted as grounds for non-renewal of a fixed term contract. Where the performance of an employee on a fixed term contract gives grounds for concern, this must be dealt with in the same way as with any other employee. 6. CONTRACTUAL TERMS All fixed term contracts must: Specify an end date or, where applicable, a specific event, (for example, a maternity leaver s return to work) Include an appropriate notice period Clearly state the reason for the fixed term status. 7. RENEWAL DATES AND EXPIRY OF CONTRACT The non-renewal of a fixed term contract is a dismissal in law. Uncertainty about ongoing employment creates anxiety for many employees on fixed term contracts. In order to reduce this to a minimum, all employees on fixed term contracts must be contacted in good time before the fixed term contract is due to expire and advised whether their contract will be renewed or confirmed as a substantive post. If neither of these options are likely, the employee will need to be consulted other employment opportunities within the PCT (Appendix 1 for Checklist for Managers and Appendix 3 for Guidance for Employees). In the case of fixed term contracts which specify a specific event as the expiry point (e.g. as is the case in maternity leave), you must keep the fixed term employee fully informed of the likely end date of the contract and, where applicable, investigate early other employment opportunities within the PCT. The Employment Rights Act 1996 contain the potentially fair reasons for dismissal, these are on the grounds of: Page 6 of 15

7 Capability Conduct Redundancy Statutory illegality Some other substantial reason (SOSR) Each case is determined on its merits but a fixed term contract dismissal will usually be fair under the heading of Some other substantial reason or redundancy, however depending on why the fixed term contract is not being renewed any of the other potentially fair reasons can apply. The formal notification of the expiry of a fixed term contract will be in accordance with the Statutory Dismissal procedure Stage one The manager will formally notify the fixed term member of staff to invite them to a meeting to discuss the expiry of the contract. The letter will confirm the right to be accompanied by a Trade Union representative, a workplace colleague or friend at this meeting. (Appendix 2, Standard letters) Stage two At the meeting the manager will confirm the reasons for the expiry of the fixed term contract e.g. end of a project. This meeting will also detail the opportunities that have already been explored for alternative other employment. At the meeting the manager should also discuss praise for successful project and the position regarding providing references for future job search Stage three The manager will confirm in writing the discussion at the meeting and the reasons why the fixed term contract will expire giving appropriate notice. The letter will also confirm the right to appeal against this decision to the next level of management within 10 working days of receipt of the letter, (Appendix 2, standard letters) The minimum notification period before the contract is due to expire, are determined by the length of the contract and are listed in the table below. Length of contract Minimum notification period 3 months or less 1 month 3-12 months 2 months 12 months or more 3 months Page 7 of 15

8 8. REDUNDANCY Where the expiry is due to the work being completed and there being no further requirement for the post and the PCT is unable to provide the employee with alternative employment, then the non-renewal of the fixed term contract may be one of redundancy. In this event, the PCT may make a redundancy payment. In order to qualify for payment, the employee must have completed 104 weeks full-time or part-time service within the NHS. Managers seeking short term funding for posts should ensure that adequate funds for redundancy compensation are included in the bid. Page 8 of 15

9 9. Appendix 1: Fixed-term contracts (FTC) Checklist for managers This checklist should be completed and kept on the employee s file. Pre-employment Why has a fixed term contract been issued? To cover absence of more than 4 weeks Time related funding Short-term funding, which is unlikely to be renewed Specialist expertise required in the short term Specific project work Contractual details Employee s full name Department Line manager Date FTC due to start / / Date FTC due to end or / / Event marking end of FTC Minimum consultation period Pre-contract end Date consultation process started 3 months / 2 months / 1 month* Please indicate whether Substantive post will be offered / FTC will be extended / FTC will be terminated* If the contract will terminate, please state reason. Termination interview checklist discussion items Date contract will terminate Information on references Review of FTC Review of performance Outcome of project Right of appeal * please delete as applicable Page 9 of 15

10 10. Appendix 2: Fixed term contracts Sample letters Contract to be extended Dear You are currently on a fixed term contract which is due to end on / / This letter is to advise you that we would like to extend your contract for a further period of / until / / * Please confirm that you accept this arrangement. Consultation process to start Dear You are currently on a fixed term contract which is due to end on / / This is to advise you that it is unlikely that we will be able to extend your fixed term contract beyond this date. The reason for non-renewal of your fixed term contract is With this letter we are starting a 1 / 2 / 3* month consultation period with you to discuss alternative opportunities within the PCT and to explore what kind of support we can offer you to help you find alternative employment. Invitation to termination meeting Dear As the consultation period is now coming to an end and no suitable alternative employment has been found for you within the PCT, we will be inviting you to a formal meeting to discuss the expiry of your fixed term contract. The meeting will be held at You have the right to be represented at this meeting by either a friend or a trade union representative. * please delete as applicable Page 10 of 15

11 Contract will terminate Dear Re: Expiry of fixed term contract Further to our meeting of / /, I write to confirm that your employment with LPCT will terminate on / / by reason of redundancy. You have the right to appeal against this decision. If you wish to appeal, you must do so in writing to the Head of Human Resources within 10 working days of receiving this letter. Page 11 of 15

12 11. Appendix 3: Fixed term contracts Guidance for employees Lewisham PCT is committed to only using fixed term contracts where there is a genuine service need to do so which can be objectively justified. In some circumstances, however, a fixed term contract is the only type, which can be issued, and this is the case with your contract. The PCT will strive to keep you informed on the state of your contract and the likelihood of its renewal or termination. Your contract will either show a date on which it is due to expire, or will state an event which will cause it to end (for example if you are covering someone who is on maternity leave). Depending on the length of your fixed term contract, your manager will start consulting with you as follows: Length of contract Minimum consultation period 3 months or less 1 month 3-12 months 2 months 12 months or more 3 months The purpose of this consultation will be to: Examine any alternatives for redeployment if your fixed term contract is not going to be renewed. Offer one to one consultation with a member of the HR team. If at the end of the consultation period, no alternative employment is available, your fixed term contract will terminate by reason of redundancy. As with any other termination of employment, you will have the right to appeal against this decision. If you have more than 104 weeks continuous full-time or part-time service within the NHS, you may be entitled to a redundancy payment. Service before the age of 18 does not count for these purposes. Page 12 of 15

13 12. Appendix 4: Frequent Questions and Answers Q. What legislation specifically covers individuals on fixed-term contracts? A. The main legislation covering workers on fixed-term contracts is: The Employment Act 2002 The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 Q. How is a fixed-term employee defined? A. For the purposes of the Regulations, a fixed-term employee is one employed under a contract of employment that will: Terminate on the expiry of a specific term The completion of a specific task The occurrence of a specific event Q. What rights do the fixed-term employees regulations give to employees on fixed-term contracts? A. The Regulations give fixed-term employees the right: not to be treated less favourably than a comparable permanent employee with regards to terms and conditions of employment to be informed of suitable permanent vacancies in the organisation to have their contracts automatically converted to indefinite ones after four years (the four years must start after 10th July 2002 and there must be two or more successive contracts) the right not to be selected for redundancy or be unfairly dismissed if the principal reason for the selection was because they were a fixed term employee to make a complaint to a tribunal seeking a written statement which sets out the reasons for the less-favourable treatment complained of. The right to no less-favourable treatment applies where: the less-favourable treatment is on the grounds that the employee is on a fixed-term contract, and the difference in treatment cannot be justified on objective grounds. In particular, this includes rights in relation to periods of qualifying service and the chance to receive training or secure any permanent position within the company. If, for example, a permanent employee gets more holiday entitlement after a certain amount of service, a fixed-term employee should also receive this increase after the same qualifying period. Page 13 of 15

14 Q. Is it possible to employ people on a series of fixed-term contracts rather than offer them a permanent contract? A. Whilst it is possible to employ people on a series of fixed-term contracts rather than offer them a permanent contract this will be the exception rather than the rule. If there is no good reason to keep staff on a succession of fixed-term contracts those staff should be made permanent. For most practical purposes, under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, if an employee has four year's continuous service under a fixed-term contract (or contracts), the contract will be treated as if it were a permanent contract. The Regulations state that to be entitled to the permanent contract: the employee must have been placed on two or more successive fixed-term contracts, and to calculate the period of four years continuous employment the time before 10 July 2002 is discounted (see above question on what rights the Regulations give fixed-term employees). The most important point of the Regulations is that the expiration and non-renewal of a fixed-term contract is a dismissal in the eyes of the law. If an employee has at least one year's service, they will have a claim for unfair dismissal if the employer fails to renew the contract without a fair reason and without following a fair procedure. Q. Is an individual on a fixed-term contract entitled to a redundancy payment? A. Yes, if an individual employed on a fixed-term contract has completed 104 weeks full- or part-time service within the NHS they will be entitled to a redundancy payment. An employer may have to make redundancy payments equivalent to those payable to permanent employees when a fixed term contract expires unless the employer can objectively justify the difference in treatment. Q. Can fixed-term employees join the NHS Pension scheme? A. Yes. Fixed-term employees should be granted the same rights of access to occupational pension schemes as permanent staff. Page 14 of 15

15 Q. What procedure should I use if a fixed-term contract is not going to be renewed? A. The formal notification of the expiry of a fixed term contract will be in accordance with the Statutory Dismissal procedure, which follows a three stage process. Page 15 of 15