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1 Trust Policy and Procedure Document ref. no: PP(16) 071 Fixed Term Contracts For use in: For use by: For use for: Document owner: Status: All areas of Trust clinical and non-clinical All staff groups Issuing Fixed Term Contracts Executive Director of Workforce and Communications Approved Purpose of this document To ensure there is a consistent approach across the Trust and that legislation is adhered to when issuing and terminating Fixed Term Contracts. Contents 1. Introduction 2 2. Scope of the policy 2 3. Issue of Fixed Term Contracts 2 4. Employee Rights 2 5. Right to a Written Statement 2 6. Successive Fixed Term Contracts 3 7. Termination of Fixed Term Contracts 3 8. Waiver Clauses 4 9. Fixed Term Position becomes permanent General Advice Review and Monitoring Document configuration 4 Page No. Appendix A Appendix B Appendix C Appendix D Letter - fixed term contract will expire on the original contract expiry date. Letter - invite to a meeting where the fixed term contract is to be terminated early. Letter which should be used following the meeting to discuss the early termination of a fixed term contract. Letter which should be used for doctors on Fixed Term Contracts Issue Date: January 2016 Review Date: January 2019 Page 1 of 9

2 1. INTRODUCTION The Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 came into effect on 1 st October The purpose of the Regulations is to ensure that employees who are on fixed term contract do not receive less favourable treatment than those who are permanently employed. The Trust is committed to fair and equitable treatment for all its employees and the new regulations support our approach to flexible employment. 2. SCOPE The above regulations apply to all employees of the Trust that are employed on a fixed term contract, excluding apprentices. 3. ISSUE OF FIXED TERM CONTRACTS A fixed term contract should only be issued to an employee where there is a specific need for the post to be appointed to on a temporary basis. A fixed term contract should not be used to assess an employee s suitability for the post. The following are examples of when a fixed term contract may be issued: To cover maternity leave or other long term absence To work on a specific project Where funding is only agreed for a specific period of time. To employees who are employed on work permits 4. EMPLOYEE RIGHTS Where (a) the treatment is on the ground that the employee is a fixed-term employee, and (b) the treatment is not justified on objective grounds, Fixed Term employees will have the right not to be less favourably treated than comparable permanent employees in respect of the following: Conditions of employment. Qualifying periods for benefits. Opportunities for training and development Opportunities to obtain permanent employment. 5. RIGHT TO A WRITTEN STATEMENT If an employee believes that that he or she has been treated less favourably than a comparable permanent employee, they may submit a request in writing to their departmental manager asking for a written statement, which gives the reasons for the differing treatment. The response must be provided within 21 calendar days of the employee s request, where appropriate, this may include proposed action to rectify the issue. Issue Date: January 2016 Review Date: January 2019 Page 2 of 9

3 6. SUCCESSIVE FIXED TERM CONTRACTS The Trust does not consider it appropriate to use successive fixed term contract unless there is a clear and justifiable reason for doing so, and will be set out in writing to the employee. Managers may only issue successive fixed term contracts for a maximum of 4 years. If a contract extends beyond four years then the regulations automatically render it permanent. An employee who believes their contract should be regarded as permanent, has a right to request in writing, a written statement from their departmental manager which either confirms their contract is permanent or gives reasons why it is to continue as a fixed term contract. 7. TERMINATION OF FIXED TERM CONTRACTS The termination of a fixed term contract is automatic and neither the employer nor employees are required to give notice. There is no breach of contract when the fixed term contract reaches the expiry date, and there can be no claim for damages. However, the definition of dismissal for unfair dismissal and redundancy includes the expiry of a fixed term contract. This means that if a fixed term contract expires and is not renewed, if the employee has the required continuity of employment (two years for unfair dismissal (one year for an employee who joined the Trust prior to 6 th April 2012) they can claim unfair dismissal if there is still work, or a redundancy payment if the work has ended. 7.1 Process to Terminate - Manager s Responsibility The Line Manager should write to an employee, whose fixed term contract is nearing the termination date, using Appendix A to confirm that the contract will terminate on the original expiry date. A copy of this letter should be sent to the HR Directorate allowing sufficient time for HR and payroll to process the termination and avoid any overpayment. 7.2 Terminating a Fixed Term Contract Early If it is necessary to terminate a fixed term contract earlier than the expressed expiry date in the contract of employment, you must follow the ACAS Code of Practice on Disciplinary and Grievance Procedures. The Line Managers should write to the employee using Appendix B, requesting that they attend a meeting where you will discuss the reasons for the early termination of the fixed term contract. The employee should be given contractual notice in line with the terms and conditions of the contract. This should always be followed up in writing using Appendix C. 7.3 Terminating a Doctor s Fixed Term Contract Please use APPENDIX D when writing to a doctor to terminate a Fixed Term Contract Issue Date: January 2016 Review Date: January 2019 Page 3 of 9

4 8. WAIVER CLAUSES Waiver clauses that allow an employee to waive their rights to a redundancy payment upon expiry/non-renewal of a fixed term contract may not be used after 1 st October Contracts containing such clauses issued prior to 1st October 2002 remain effective. If the contract was renewed or extended after this date, and the fixed-term employee has at least two years' continuous service, they will be entitled to statutory redundancy pay and any waiver signed will not stand. 9. FIXED TERM POSITION BECOMES PERMANENT There is no legal obligation to offer the employee on the fixed term contract the post on a permanent basis. However, we are required to ensure that employees on fixed term contracts are given the same opportunity to secure permanent employment, as all other employees. On occasions where an employee has been in a fixed term post and has gained skills and experience in that post, a decision to offer the permanent role may be considered. There must be no other employees on fixed term contracts that would be interested in the post and the manager must seek advice from the HR Directorate on each case. 10. GENERAL ADVICE If you need advice regarding the use of a fixed term contract please contact the HR and Communications Directorate or your Trade Union Representative, where appropriate. 11. REVIEW & MONITORING This policy will be reviewed annually by the Executive Director of Workforce and Communications in consultation with Trust Council. 12. DOCUMENT CONFIGURATION Author(s): Angie Manning, HR Manager Other contributors: Approvals and endorsements: Corporate Risk Committee Consultation: Trust Council Issue no: 6 File name: CharlieS/Personnel/Policies 2016/PP(16)071 Fixed term Contracts Supercedes: PP(13)071 Equality Assessed Yes form completed Issue Date: January 2016 Review Date: January 2019 Page 4 of 9

5 Implementation Monitoring: (give brief details how this will be done) Other relevant policies/documents & references: Policies will be distributed by the IG Manager to General Managers, Service Managers and all Ward/Department Managers. Policy will be available on the Trust Intranet Site. Implementation, compliance and effectiveness of this policy will be monitored by the HR & Communications Directorate on an ongoing basis. This will be achieved by monitoring the use of Fixed term Contracts across the Trust. 100% of contracts issued must be inline with the regulations as stated in the policy. The Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 came into effect on 1 st October The Employment Act 2002 statutory dismissal and disciplinary procedures Issue Date: January 2016 Review Date: January 2019 Page 5 of 9

6 APPENDIX A Date: Name & Address: Dear Expiry of Fixed Term Contract I am writing to you regarding your Fixed Term Contract of Employment, as a (insert job title) with the West Suffolk NHS Foundation Trust. The non-renewal of a Fixed Term Contract is classed as a dismissal in law, under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 and I am required to provide in writing the reasons for the contract finishing. As you are aware the Fixed Term contract is due to expire on the (insert date) and I confirm that the contract will end on this date, due to the following reason: Delete as appropriate: Your Fixed Term Contract was issued to cover the maternity leave of the permanent post-holder, who is now returning from maternity leave. Your Fixed Term Contract was issued to cover a specific project, which has now been completed. Your Fixed Term Contract was issued on the basis of funding being available for a set period of time, which has now expired. Your Fixed Term Contract was issued in connection with the approved dates of your work permit issued by the Home office. I would like to take this opportunity to thank you for all your hard work during the period of the contract, and to wish you well in your future career. Yours sincerely Name and Title. CC HR & Communications Directorate Issue Date: January 2016 Review Date: January 2019 Page 6 of 9

7 Date: APPENDIX B APPENDIX B Name & Address: Dear Fixed Term Contract Early Termination I am writing to you regarding your Fixed Term Contract of Employment, as a (insert job title) with the West Suffolk Hospital NHS Trust, which is due to finish on the (insert date). However there is a possibility that the Trust may need to give notice on an earlier date of expiry due to. The non-renewal of a Fixed Term Contract is classed as a dismissal in law, under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations I am required by these regulations to meet with you regarding your contract, and have therefore, arranged a meeting on the ************** at ******* in the ********************. You are entitled to be accompanied at the meeting by either a Trade Union representative or a colleague acting in a non-official capacity. If you wish to be accompanied, you should make these arrangements for yourself. If the above date and time is not suitable please contact me on receipt of this letter so we can agree a more convenient date and time. If you have any questions on the above please do not hesitate to contact me. Yours sincerely Name and Title. CC HR & Communications Directorate Issue Date: January 2016 Review Date: January 2019 Page 7 of 9

8 Date: APPENDIX D APPENDIX C Name & Address: Dear Confirmation of Early Termination of a Fixed Term Contract I am writing to you following our meeting on the (insert date), when we discussed the early termination of your Fixed Term Contract of Employment with the West Suffolk NHS Foundation Trust. As advised the termination of a fixed term contract is classed as a dismissal, and I am required to provide in writing the reasons for the contract finishing earlier than expected. Delete as appropriate: Your Fixed Term Contract was issued to cover the maternity leave of the permanent post-holder, who is now returning from maternity leave. Your Fixed Term Contract was issued to cover a specific project, which has now been completed. Your Fixed Term Contract was issued on the basis of funding being available for a set period of time, which has now expired. Your Fixed Term Contract was issued in connection with the approved dates of your work permit issued by the Home office. Unfortunately, there are no suitable alternative employment opportunities for you at the present time in the Trust. I am, therefore, writing to formally give you notice that your contract will terminate on the (insert date). You should also be aware that the legislation allows employees the right to appeal against the termination of Fixed Term contract, and if you wish to appeal you should write to Jan Bloomfield, Executive Director of Workforce and Communications within 21 days from the date of this letter, giving your reasons for the appeal. I would like to take this opportunity to thank you for all your hard work during the period of the contract, and to wish you well in your future career. Yours sincerely Name & Title Issue Date: January 2016 Review Date: January 2019 Page 8 of 9

9 CC HR & Communations Directorate APPENDIX D Date REF: Doctors/Fixed Term Dear, I am writing to you concerning the expiry of your fixed term Contract of Employment with the West Suffolk NHS Foundation Trust on (insert date). As you may be aware the Employment Act 2002 (Dispute Resolution) Regulations 2004 are now in place for all dismissal situations, including the termination of a fixed term contract. We are required by these regulations to formally notify employees when they are contemplating the termination of an employee s contract. These Regulations apply to the expiry and non renewal of fixed term contracts. For the avoidance of doubt, this clause constitutes formal notification that your employment with us is expected to cease on unless formally renewed as part of your training programme with West Suffolk NHS Foundation Trust. You are entitled, under the Trust s Grievance Procedure, to raise any concerns regarding your employment, including the status and non-renewal of your contract. Should you wish to raise concerns, you are entitled to a meeting to discuss the concerns and subsequently, to appeal against any decision made by the Trust on the matter. If you wish to appeal you should write to Jan Bloomfield, Executive Director of Workforce and Communications Directorate within 21 days of the date of any meeting held, giving your reasons for the appeal. Yours sincerely Lesley Day Medical Staffing Manager Issue Date: January 2016 Review Date: January 2019 Page 9 of 9