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1 Policy: F10 Fixed Term Contracts Version: F10/01 Ratified by: Trust Management Team Date ratified: 14 th May 2014 Title of Author: Head of HR Consultancy Services Title of responsible Director Director of Organisation and Workforce Governance Committee Trust Partnership Forum Date issued: 14 th May 2014 Review date: May 2017 Target audience: All staff Trustwide Disclosure Status B Can be disclosed to patients and the public EIA Implementation Plan H:\policies\EIA\EIA Fixed Term Contracts H:\policies\ Implementation plans\ Other Related Procedure or Documents: Recruitment and Selection Policy (R6), Disciplinary Policy (D4), Policy for Handling Concerns about a Doctor s Performance (D4a), Organisational Change Policy (C24), Leave Policy (L4), Managing Health and Attendance (S8), Secondment and Temporary Promotion (S32). West London Mental Health NHS Trust Page 1 of 21

2 Equality & Diversity statement The Trust strives to ensure its policies are accessible, appropriate and inclusive for all. Therefore all policies will be required to undergo an Equality Impact Assessment and will only be approved once this process has been completed. Sustainable Development Statement The Trust aims to ensure its policies consider and minimise the sustainable development impacts of its activities. All policies are therefore required to undergo a Sustainable Development Impact Assessment to ensure that the financial, environmental and social implications have been considered. Policies will only be approved once this process has been completed. West London Mental Health NHS Trust Page 2 of 21

3 F10 - Fixed term Contracts Version Control Sheet Version Date Title of Author Status Comment F10/01 Feb 2014 Head of HR Consultancy Services NEW Policy To address a gap in the policy framework, providing guidance on when to use fixed term contracts and the rights of employees on fixed term contracts. Trustwide consultation ending Presented to May 2014 TMT - Approved West London Mental Health NHS Trust Page 3 of 21

4 Content Page 1 Summary Flowcharts 5 2 Introduction 7 3 Scope 7 4 Definitions Duties Chief Executive Accountable Director Managers Policy author Local policy leads HR staff All staff Systems/Documentation 9 7 When to use a fixed term contract 10 8 Appointment to a fixed term contract 11 9 Terms and Conditions Redundancy Renewal beyond 4 years Expiry of a fixed term contract Training Monitoring References Supporting Documents Acronyms Appendices Appendix 1 - Variation to Contract attachment Appendix 2 - Request to discuss the end of a fixed term contract letter Appendix 3 Extension of a fixed term contract letter Appendix 4 - Monitoring Template West London Mental Health NHS Trust Page 4 of 21

5 1 SUMMARY FLOWCHARTS 1.1 When to use a fixed term contract Vacancy to be filled Short Term Vacancy (less than 3 months) Medium (3 to 6 months) or Long Term (6 months+) Vacancy Consider 1. Temporary promotion 2. Secondment 3. Bank working 4. Agency Either; Duties end on a specific date or When specific work is completed or Funding lasts for a specified period or When a specified event does or does not occur (e.g. return from maternity leave) No Yes 1. Permanent Contract or 2. Temporary promotion Acting Up for 3 months to a year or 3. Secondment for 3 months to a year A fixed term contract is appropriate, however acting up or secondment should still be considered West London Mental Health NHS Trust Page 5 of 21

6 1.2 Renewal or Termination of a fixed term contract Fixed Term Contract (FTC) expires in 2 months or a FTC is to be terminated early. Extension of FTC Termination on expiry of the FTC Early termination of the FTC Advise employee using draft letter at Appendix 3. Meet with employee. Advise employee using draft letter at Appendix 2. Meet with employee. Advise employee using draft letter at Appendix 2. Meet with employee. Notify Capita HRSS through the Change of Circumstance Form on the Exchange. (See the notification at Appendix 1) If more than 2 years service with WLMHT, the employee is entitled to a redundancy payment. Refer to the Change Management Policy (C24) Right of appeal. Manager to arrange an appeal hearing which follows the procedure in the Disciplinary Policy (D4) West London Mental Health NHS Trust Page 6 of 21

7 2. INTRODUCTION 2.1 The aim of this Policy is to set out the Trust s approach to the employment of individuals on fixed term contracts and to take into account the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (referred to as the Fixed Term Regulations), as amended. 2.2 Employees on fixed term contracts will not be treated less favourably than comparable permanent employees, unless there is an objective justification for doing so. An example of where there could be an objective justification is the refusal of a training opportunity if a fixed term contract is due to expire. Equality issues must always be considered in the rare event that an objective justification is used. 2.3 A fixed term employee who believes they are being treated less favourably than a comparable permanent employee should raise their concerns with their line manager or with HR. Under the Fixed Term Regulations, the employee may also make a written request to their line manager for a written statement explaining the reasons for the apparent less favourable treatment. The line manager will respond in writing to this request within 21 (calendar) days of receipt. 2.4 Individuals employed on fixed term contracts for less than full time hours will receive the same or equivalent terms and conditions of service as a permanent comparable employee on a pro-rata basis. 2.5 The ending of a fixed-term contract is a dismissal in law. 2.6 A continuous succession of fixed-term contracts will usually lead to an employee gaining continuous service from one contract to another. This can occur even though s/he has been employed in different posts, different parts of the Trust, or for some purposes, with different or associated employers. 2.7 If employment on a series of fixed-term contracts is continuous and exceeds 4 years in duration by law the employee will automatically become permanent unless the Trust can show there is a good business reason not to do so. 3. SCOPE 3.1 This Policy applies to all employees on fixed term contracts. 4. DEFINITIONS 4.1 Fixed term contract - a contract of employment which comes to an end, either: On a specific date When a specific task is completed (e.g. on completion of a particular project) Where funding is only agreed for a specific period of time West London Mental Health NHS Trust Page 7 of 21

8 When a specified event does or does not occur (e.g. when an employee returns from maternity leave) 4.2 Secondment - a temporary move between one job and another, other than a temporary promotion as defined below, which usually involves a transfer from one line manager to another. Secondments can be within a department, to another department or even between different organisations. Secondments can be at the same or a different pay band to the individual s substantive post. The duration of a secondment will normally be for at least three months but could, in some situations, last for a year or more. 4.3 Temporary promotion an employee assuming the full duties and responsibilities of a higher banded post for a temporary period to cover an employee who is absent, for example on parental leave, anticipated long-term sickness, a career break or for extended training. A temporary promotion is usually within a department. Their salary will be adjusted accordingly. Temporary promotion arrangements do not apply when the higher band duties and responsibilities are shared with other individuals, unless there is a formal jobsharing arrangement in place. A temporary promotion will usually be for a period up to six months but could be longer in specific circumstances, e.g. to cover a oneyear career break. 5. DUTIES 5.1 Chief Executive The Chief Executive is responsible for ensuring that the Trust has policies in place and complies with its legal and regulatory obligations. 5.2 Accountable Director The Director of Organisation and Workforce is responsible for the development of relevant policies and to ensure that they comply with applicable standards relevant to the policy. They are also responsible for Trustwide implementation and compliance with the policy. 5.3 Managers Managers are responsible for ensuring policies are communicated to their teams / staff. They are responsible for ensuring staff attend relevant training and adhere to the policy detail. They are also responsible for ensuring policies applicable to their services are implemented. Managers have specific responsibilities for fixed term contracts to; Give consideration to the appropriate use of fixed term contracts (see section 7) Provide a written statement to a fixed term employee if they believe that they have been treated less favourably (see section 9.7) Manage the following process in relation to fixed term contracts - redundancy, renewal and termination ( see sections 10, 11 and 12) West London Mental Health NHS Trust Page 8 of 21

9 5.4 Policy Author Policy Author is responsible for the development or review of a policy as well as ensuring the implementation and monitoring is communicated effectively throughout the Trust via CSU / Directorate leads and that monitoring arrangements are robust. 5.5 Local Policy Leads Local policy leads are responsible for ensuring policies are communicated and implemented within their CSU / Directorate as well as co-ordinating and systematically filing monitoring reports. Areas of poor performance should be raised at the CSU / Directorate SMT meetings. 5.6 HR Staff The HR Advisory Team has specific responsibilities for providing advice to managers on the renewal of fixed term contracts ( see section 11.3), on the expiry of fixed term contracts (see section 12.1) the right of appeal with regard to the early termination of a fixed term contract (see section 12.12) training (se section 13.1) The Business Partners address issues relating to fixed term contracts with CSU/Directorate SMTs and HR Matrix meetings 5.7 All Staff All staff have a responsibility to familiarise themselves with this and other relevant Trust policies and procedures. 6. SYSTEMS / DOCUMENTATION 6.1 Once a week an ESR Alerts Report is uploaded to the Exchange by the HR Workforce Team. This contains the Fixed Term Contract end date as held on ESR (the end date is entered during recruitment by Capita HRSS). When the Fixed Term Contract end date is approaching an Alert is automatically sent to the line manager and the employee stating their name along with their due to expire date. The Alert continues to appear until the manager has submitted the Form and it has been processed by Capita HRSS. The banding/grade of the employee determines how far in advance the Alert is automatically sent (i.e. Band 4 - notified 6 weeks prior to due to end date compared to 10 weeks for a Band 7). 6.2 When there is a Variation to Contract with fixed term extended or terminated, an with an attached letter is sent to the line manager to complete and submit as West London Mental Health NHS Trust Page 9 of 21

10 instructed. This is triggered once the Capita payroll officer has completed the Change of circumstance form. The letter is attached at Appendix Advertisements for fixed term contracts within the Trust will normally be placed on NHS Jobs and be accessible to existing staff via the Exchange Staff Room. Recorded by Capita HRSS When recorded when details received from recruiting manager 6.4 Changes to job roles are notified through the on-line change of circumstance form which is found on the Exchange in the HR 1: Stop area. Details are confirmed in a letter to the member of staff and added to the personal file. Recorded by line manager When recorded when the secondment or temporary promotion is agreed 7. WHEN TO USE A FIXED TERM CONTRACT 7.1 Managers must always give consideration to the appropriate employment terms before a vacancy is filled. 7.2 Where it is not appropriate or possible to recruit on a permanent basis, the manager must determine whether the appointment is expected to be short term (usually less than 12 weeks), in which case a post should be filled by either An acting up or secondment arrangement An agency worker should be engaged A post can be covered in the short term by offering bank hours 7.3 Where the appointment is expected to be longer term, the manager should first consider whether the post can be filled through a secondment or temporary promotion (Acting Up). In determining whether these options should be used, the line managers needs to carefully consider how best to fill the post, for example; whether there are any suitable internal candidates for the role? are there any staff looking for redeployment? how quickly the post needs to be filled (can internal candidates be released in time or will advertising take too long)? will the role provide career development for existing staff or is it work that needs to be completed within a specified period? Managers should always seek advice from HR on how best to fill the post. All vacancies, whether permanent, fixed term or secondments should be advertised. 7.4 Where it is considered appropriate to use a fixed term contract, this option must never be used to assess an employee s suitability for a permanent post. West London Mental Health NHS Trust Page 10 of 21

11 7.5 Where a contract for services is more appropriate, procurement procedures must be followed. Please refer to Procurement for further advice. 8. APPOINTMENT TO A FIXED TERM CONTRACT 8.1 Any appointment to a fixed term contract is subject to the provisions of the Trust s Recruitment and Selection Policy (R6). In particular, the following points should be noted: Employment Checks 8.2 The same checks and standards apply to fixed term contract posts as they do to permanent posts. Therefore, all fixed-term contract posts are subject to: satisfactory employment and medical references prior to an individual being confirmed in post A DBS check, where it is a requirement of the post Previous NHS service 8.3 Managers should also be aware that, on appointment, an employee who has continuous NHS service may have certain employment / contractual rights on appointment, even if the contract with the Trust is for a relatively short fixed term. These apply in particular to redundancy (see section 10 below) and to certain contractual entitlements (e.g. maternity, annual leave and sick pay). These are covered in section 9 below. Notice 8.4 A fixed term contract should always include a notice period which will apply if it is necessary to terminate the contract earlier than the agreed end date. This enables both the Trust and the employee to terminate the contract ahead of the agreed end date by giving the required notice. A failure to incorporate a notice period will mean that the employee will be entitled to be paid until the end of the contract should the Trust seeks to terminate their employment earlier than the agreed end date. 8.5 The notice period will usually be at least one month, in line with the minimum term for permanent employees. Where the contract is particularly short, it may be possible to objectively justify a shorter notice period. HR should be contacted for advice prior to any variation in the notice period being included in a fixed term contract. 9. TERMS AND CONDITIONS Sick Pay 9.1 Employees on fixed term contracts are entitled to occupational sick pay in accordance with the Trust s sickness scheme. In calculating the entitlement, any West London Mental Health NHS Trust Page 11 of 21

12 continuous NHS service must be taken into account. Employees have access to the statutory sick pay scheme from the date of appointment with the Trust. Annual Leave 9.2 Employees on fixed term contracts are entitled to paid leave from the date of appointment, in accordance with the Trust s Leave Policy (L4). Bank Holidays 9.3 Provided that fixed-term employees are not contractually required to work on a bank holiday, they are entitled to paid bank holidays on the same basis as comparable permanent employees, as set out in the Leave Policy (L4). Maternity Pay and Leave 9.4 A fixed term employee will be entitled to occupational maternity pay and leave once they have accrued 1 year s continuous service. Any previous continuous NHS service will be taken into account in establishing this qualifying period. Pension 9.5 The pension provision for employees on a fixed term contract may vary depending on the circumstances, for example the length of the contract. As a result, the position should be checked with the Capita HRSS Pensions Team in each individual case. The right to a written statement 9.6 If an employee on a fixed term contract believes that they have been treated less favourably than a comparable permanent employee, they may submit a request in writing to their line manager asking for a written statement which gives the reason for the differing treatment. A response must be provided with 21 calendar days of the request and where appropriate may include the proposed action to rectify the issue. Continuity of Service 9.7 An employee joining the Trust, who has previously worked for a different NHS employer has continuity of service for certain entitlements (redundancy, annual leave, occupational maternity pay and occupational sick pay) if they have not had a break in service between the two employments. 9.8 Continuity of service is broken if the employee has had a break of a whole statutory week between the two employments. A statutory week begins on a Sunday and ends on the next Saturday. Any part of a week in which a person works counts towards continuity and therefore there must be a clear break of a whole statutory week between the employments before continuity is broken. 10. REDUNDANCY 10.1 A fixed term employee, whose contract is not being renewed because the post is being deleted, should have the organisational Change Policy (C24) applied to West London Mental Health NHS Trust Page 12 of 21

13 them, as a permanent employee would. This means the employee must be consulted and offered any suitable alternative employment that exists in accordance with the Trust s Policy. Employees must also be considered for any suitable redeployment opportunities which exist until the date the fixed term contract expires Fixed term employees are entitled to a redundancy payment once they have two years continuous NHS service All continuous service will be taken into account in establishing the employee s entitlement to redundancy pay. For example, a fixed term employee whose post is made redundant after they have been employed at the Trust for only 6 months will nonetheless be entitled to a redundancy payment if, taking into account any previous continuous NHS service with, they have at least 2 years continuous NHS service. 11. RENEWAL BEYOND 4 YEARS 11.1 Under the Fixed Term Regulations, a fixed term contract that has been renewed or extended will become a permanent contract once the employee has completed 4 years continuous service, unless there is objective justification for not doing so. An employee who considers that their contract has become permanent can write to their line manager to request clarification of their status. The line manager will respond to this, in writing, within 21 days and either agree that the status has become permanent or provide reasons why the employment continues to be regarded as fixed term Continuous service accrued on a permanent contract, prior to the commencement of a fixed term contract, does not count in calculating this 4 year period Managers, who are looking to renew or extend a fixed term contract where the employee would accrue 4 years continuous service, must discuss the situation with the HR Advisory Team prior to that renewal or extension. It must be agreed that it is necessary to retain the employee on a fixed term basis before taking action which would afford the employee permanent employment status. 12. EXPIRY OF A FIXED TERM CONTRACT 12.1 At least two months before a fixed term contract is due to expire, the line manager must discuss, with the HR Advisory Team, the appropriate way forward. In all cases, consideration must be given to whether there is still a requirement for the post and, if so, whether that should be on a fixed term or permanent basis. If it is decided that the post can be filled on a permanent basis, the post should be advertised internally so that other employees who are at risk of redundancy have the opportunity to apply Where the contract is to be renewed on a fixed term basis, the manager must notify the Capita HRSS & Payroll Team using the Change in Circumstance Form on the West London Mental Health NHS Trust Page 13 of 21

14 Exchange to arrange for a new contract to be issued to the employee. Managers must note the provisions in Renewal beyond 4 years ( see section 11 above) It is the manager s responsibility to write to an employee whose fixed term contract is nearing the termination date to arrange a meeting to discuss the end of the contract Appendix 2 provides a draft letter to be used to request that an employee meets with the manager to discuss the end of a fixed term contract Appendix 3 provides a draft letter which should be used following an agreement to extend a fixed term contract. Early Termination of a fixed term contract 12.6 If there is no longer a requirement for the post, the contract will not be renewed and the termination is classed as a dismissal. As a result, the Trust s appropriate policies and procedures must be applied in full, as they would to a comparable permanent employee. This means that there must be a meeting with the employee giving the reasons for the termination of the contract with the required notice period provided Where the reason for the dismissal is redundancy, the employee will be entitled to a redundancy payment if they have at least 2 years continuous NHS service at the date of termination. This applies even if the contract is expiring in accordance with the agreed terms of the contract (i.e. on the agreed date or completion of the task / event). Notice 12.8 An employee on a fixed term contract is not entitled to notice of termination if the contract is expiring on the agreed date or completion of the task or event although managers will wish to discuss the impending termination with the employee as a matter of good practice. If however, the fixed term contract is being terminated earlier than the agreed end date, completion of the task or event, the employee must be given the agreed notice provided for in the contract. The notice must not extend the fixed term contract beyond its expiry date. Right of Appeal 12.9 Where a fixed term contract terminates on the agreed end date or completion of the task or event, and in accordance with the purpose of the contract (e.g. where funding for a project ceases in line with expectations), the employee does not have a right of appeal against the dismissal If however, the fixed term contract is terminated before the agreed end date or completion of the task or event, the employee has a right of appeal against the decision. The employee must submit their appeal in writing to the Head of Employee Services within 5 working days of receipt of the written decision. The West London Mental Health NHS Trust Page 14 of 21

15 grounds for the appeal should be clearly set out. The appeal will follow the appeals procedure contained in the Trust s Disciplinary Policy (D4). The appeal hearing should be held within 21 calendar days of the receipt of the letter of appeal or within a shorter time period if the contract is close to the expiry date Appeals must be processed in a timely manner to ensure that matters are concluded before the expiry of the fixed term contract Managers who are unclear about whether an employee on a fixed term contract has the right of appeal should contact HR Advisory Team for advice. 13. TRAINING 13.1 Managers and staff have a responsibility to read and be aware of the relevant parts of the policy. The HR Advisory Service provides advice, policy awareness raising and coaching to managers as and when required. Awareness training on all people policies is included as part of the manager induction programme. 14. MONITORING 14.1 Fixed Term Contract data is captured within matrix reports that go to the OD Business Partners on a monthly basis and is also available at the HR matrix meetings for information, action and discussion with CSU SMTs Monitoring of fixed term contracts is undertaken by the HR Workforce and Information Team through a reporting function on the Exchange. (See the Monitoring Template at Appendix 4) 15. REFERENCES This policy should be read in conjunction with the following: Fixed-term Employment Contracts Gov.uk 16. SUPPORTING DOCUMENTS Recruitment and Selection Policy (R6) Disciplinary Policy (D4) Organisational Change Policy (C24) Leave Policy (L4) Managing Health and Attendance (S8) Policy for Handling Concerns about a Doctor s Performance (D4a) Capability Policy (C30) West London Mental Health NHS Trust Page 15 of 21

16 Secondment and Temporary Promotion (S32) 17. ACRONYMS NHS HR CSU SMT Capita HRSS ESR FTC National Health Service Human Resources Clinical Service Unit Senior Management Team Capita HR Shared Service Electronic Staff Recording Fixed Term Contract 18. APPENDICES Appendix 1 - Variation to Contract attachment Appendix 2 - Request to discuss the end of a fixed term contract letter Appendix 3 Extension of a fixed term contract letter Appendix 4 - Monitoring Template West London Mental Health NHS Trust Page 16 of 21

17 APPENDIX 1 VARIATION TO CONTRACT ATTACHMENT EXTENSION OF A FIXED TERM CONTRACT Name (insert name of employee from CofC form) Address (insert home address) Date (insert today s date) Dear (insert name) Re: Variation to contract permanent / fixed term / secondment / honorary contract (delete as appropriate). Following our discussions I am pleased to confirm the following variation to your contract effective from [insert effective date] Job Title: Band: Location of work: Commencing Salary: Hours of work: West London Mental Health NHS Trust Page 17 of 21

18 High Cost Area Supplement: 5% / 15% / 20% (delete as appropriate) Allowances: (delete as appropriate) Special Hospital Lead Higher Environmental Allowance Forensic Allowance Extension to Contract From [insert date] To [insert date] All other terms and conditions of employment will remain unchanged. Note to employee: Please sign both copies of this variation to contract retaining one for your own records and return the other to your manager as soon as possible. As the manager I will a scanned signed copy to the relevant Senior HR Advisor to be placed on your personal file. If you have questions regarding this please do not hesitate to contact me Yours sincerely, Signed (manager):... Date:. (on behalf of West London Mental Health NHS Trust) Print Name: Designation:... Signed (employee):. Date: Print Name Designation. West London Mental Health NHS Trust Page 18 of 21

19 REQUEST TO DISCUSS THE END OF A FIXED TERM CONTRACT APPENDIX 2 PRIVATE AND CONFIDENTIAL Name of Addressee> <Address line 1> <Address line 2> <Address line 3> <Postcode> <Dept Name> <Address line 1> <Address line 2> <Address line 3> <Postcode> Telephone: 020 xxxx xxxx Dear <Name of Addressee> RE: ENDING OF A FIXED TERM CONTRACT I am writing to confirm that your current contract as (job title) is due to expire on. The reason(s) for this is/are (enter reason i.e. agreed end of contract, completion of the task). You are invited to attend a meeting to discuss this further. The meeting has been arranged for (date and time) at (location) with (line manager s name). You may be accompanied by a trade union representative or a Trust colleague. Please can you confirm your attendance and the name of your representative/colleague as soon as possible. I look forward to hearing from you. Yours sincerely, < Signature> < Name> < Job Title> West London Mental Health NHS Trust Page 19 of 21

20 APPENDIX 3 EXTENSION OF A FIXED TERM CONTRACT PRIVATE AND CONFIDENTIAL Name of Addressee> <Address line 1> <Address line 2> <Address line 3> <Postcode> <Dept Name) <Address line 1> <Address line 2> <Address line 3> <Postcode> Telephone: 020 xxxx xxxx Dear <Name of Addressee> RE: EXTENSION OF A FIXED TERM CONTRACT As you are aware, your fixed term contract was due to expire on (date). On behalf of the trust, I would like to offer you an extension to your contract for another fixed term, to run consecutively with your current contract and continuing until (date). The extended contract means that you will continue in your current position on the same terms and conditions ( except for the new termination date). If you accept this extension, your employment wit West London Mental health Trust will be continuous for statutory purposes. Please would you sign the duplicate copy of this letter to confirm your acceptance of the extension of your contract and return it to me by (date). I look forward to having you in our employment for a further period of time. Yours sincerely, < Signature> < Name> < Job Title> I accept the offer of an extension to my fixed term contract and agree to the new termination date of (date) Name of Employee Date: Signed: West London Mental Health NHS Trust Page 20 of 21

21 APPENDIX 4 MONITORING TEMPLATE POLICY : FIXED TERM CONTRACTS MONITORING TEMPLATE Minimum Requirement to be Monitored ESR Alert Report and associated to manager to complete a change of circumstance form Where described in policy Section 6 WHO (which staff / team / dept) HR Workforce and Information Team HOW MONITORED (Audit / process / report / scorecard) - list details HOW MANY RECORDS (No of records / % records) FREQUENCY (monthly / quarterly / annual) REVIEW GROUP (which meeting / committee) OUTCOME OF REVIEW / ACTION TAKEN (Action plan / escalate to higher meeting) ESR alerts 100% Weekly HR Matrix meetings CSU SMTs/Directorate meetings Matrix reports Section 14.1 Business Partners Report from ESR 100% Monthly HR Matrix meetings CSU SMTs/Directorate meetings Monitoring of all Fixed Term Contracts Section 14.2 HR Workforce and Information Team Report from ESR 100% Quarterly HR Matrix meetings CSU SMTs/Directorate meetings West London Mental Health NHS Trust Page 21 of 21

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