NHS North Somerset Clinical Commissioning Group. Fixed Term Contract Policy
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1 NHS North Somerset Clinical Commissioning Group Fixed Term Contract Policy Approved by: Quality and Assurance Group : Ratification date: May 2013 Review date: July 2015 Next Review date: July 2018 Page 1 of 8
2 Contents 1 Introduction and Background What is a fixed term contract.3 3 When is it appropriate to use a fixed term contract? Are all fixed term employees covered? What rights do fixed term workers have? What if an employee on a fixed term contract believes that they have been treated less favourably? Does a fixed term contract become permanent after a certain period of time?..4 8 What happens if a fixed term contract is not renewed? If a fixed-term contract comes to an end, is the employee entitled to redundancy? Can a fixed-term employee complain to a tribunal? Training on this Policy.5 Appendix 1: Procedure for Terminating a Fixed Term Contract upon Expiry Page 2 of 8
3 1 Introduction and Background This policy, procedures and guidance have been drawn up in accordance with the Fixed Term Employees (prevention of less favourable treatment) Regulations 2002, which was implemented on 1 October This policy is non-contractual and may be amended from time to time. 2 What is a fixed term contract? A fixed term contract is one that is due to end when a specified date is reached, a specified event does or does not happen, or a specific task has been completed. 3 When is it appropriate to use a fixed term contract? A fixed-term contract is likely to be appropriate in the following circumstances: The provision of cover for extended absence from work of a substantive employee through maternity or sickness leave, secondment or career break. The management of organisational change Where a specific piece of work or project needs to be completed. Where there is uncertainty of short-term funding being renewed nor other external or internal funding becoming available Where the contract is for training or career development e.g. clinical staff undertaking professional training Fixed-term contracts should only be used when absolutely necessary. A fixed-term contract is not to be used as an alternative to a probationary period. 4 Are all fixed term employees covered? There are some categories of worker who are excluded from the above legislation. They are: Apprentices Employees on certain Government training schemes Students on occupational placements as part of an educational programme Agency workers Page 3 of 8
4 5 What rights do fixed term workers have? The Regulations give fixed term employees the right in principle not to be treated less favourably than a comparable permanent employee with regards to terms and conditions of employment. 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. Fixed term employees have the right to be informed of suitable permanent vacancies in the Clinical Commissioning Group (CCG) and will be deemed to be at risk. This means that they will be given prior consideration for any suitable vacancies in line with permanent staff that are also deemed to be at risk. 6 What if an employee on a fixed term contract believes that they have been treated less favourably? If an employee on a fixed term contract believes they have or are being treated less favourably, he/she has the right to request in writing that the CCG supplies a written statement giving the reason for any less favourable treatment. The statement should be made to the employee within 21 days of the request. The statement from the employer should set out the reasons for the different treatment or the reasons why less favourable treatment is not occurring. If the employee is not satisfied with this statement, they should raise a grievance using the CCG s Grievance Procedure. 7 Does a fixed term contract become permanent after a certain period of time? Under the Regulations, when an employee has 4 years continuous service under a fixed term contract or a series of various fixed term contracts, the contract will be treated as if it were a permanent one unless the employer can objectively justify that the contract should continue on a fixed-term basis. The renewal will be justified on objective grounds if it can be shown that the use of a further fixed term contract: Is to achieve a legitimate objective, for example a genuine business objective Is necessary to achieve that objective Is an appropriate way to achieve that objective A fixed term employee can also ask for a statement to confirm that their contract is to be regarded as permanent, once they have been employed on successive fixed term contracts of four years (see below). Page 4 of 8
5 If an employer has been asked to produce a written statement to explain why a fixed term employee, continues to be employed on a fixed term basis beyond 4 years, the Statement should set out the reasons for the continued use of fixed term contracts. 8 What happens if a fixed term contract is not renewed? Regardless of the Regulations, the expiration and non-renewal of a fixed term contract is a dismissal, and, if the employee has 2 years 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, e.g. non-renewal of a contract because of concerns relating to the employee s performance would be potentially deemed an unfair dismissal if the employee has more than one year s service. An unfair dismissal claim could also be brought if the contract is not renewed but there is still work available. The procedure for terminating a fixed-term contract is set out in Appendix 1 of this document. 9 If a fixed-term contract comes to an end, is the employee entitled to redundancy? Fixed term employees on contracts of two years or more (NHS service) will have a right to redundancy payments if they are made redundant at the end of their contracts. When a fixed term contract terminates and is not renewed, the employee is dismissed (as above). The reason for dismissal of a fixed term contract will not always be redundancy this will depend on the circumstances of the case e.g. if the fixed term employee was covering an absent member of staff, this would not be a redundancy situation. 10 Can a fixed term employee complain to a tribunal? An employee on a fixed term contract can complain to an employment tribunal if they feel their rights under these Regulations have been infringed. If the tribunal upholds the employee s complaint, it can order compensation and recommend that the employer take certain action to remove the adverse effect on the employee. 11 Training on this Policy As the policy is comprehensive line managers will therefore be responsible for the dissemination of the policy to their respective teams via team meetings and briefings (as appropriate). It is advised that managers will remind staff of the content of this policy on a frequent basis so as to ensure any new starters are familiar with the policy. It is expected that line managers will keep accurate records in order to evidence the above. Page 5 of 8
6 Appendix 1 Procedure for Terminating a Fixed Term Contract upon Expiry Prior to any consideration to terminate the Fixed Term Contract upon its natural expiry, the manager must be satisfied that the fixed term employee has been notified of any suitable permanent posts and has had the opportunity to apply for any vacancies. All vacancies are published on the website, team talk and on circulated job bulletins. The most up-to-date list is available from HR. Employees whose contract is likely to end will be considered to be at risk and be given prior consideration for other vacancies (see section 6). That being the case, the manager must take the following steps in order to terminate the contract. Step 1 Step 2 Step 3 At least four weeks prior to the commencement of the contractual notice period, the manager must write to the employee advising them that termination of the fixed term contract is being considered upon its expiry date. The employee must be invited to a meeting to discuss the matter and advised that they are entitled to be accompanied at the meeting by a trade union representative or work colleague, but their unavailability cannot unduly delay the meeting. The meeting must be held outside the minimum contractual notice period. The manager must next hold a meeting to discuss the reasons for the termination of the fixed term contract upon expiry. Advice may be sought from HR at this point. At the meeting, the employee and/or his or her representative must be afforded the opportunity to respond to or challenge the manager s decision. At the end of the meeting, the manager must advise the employee of their decision, advise the employee of his/her right of appeal against the decision to the next line manager. This information must be followed up in writing. If the employee wishes to appeal, the senior manager must arrange an appeal hearing at which he/she must be accompanied by HR. The employee will be entitled to be accompanied by a trade union representative or work colleague. Having heard from both parties, the manager and the employee, the senior manager will, after taking HR advice, advise the employee of the final decision and subsequently formally confirm in writing. Importantly, if the final decision is to proceed with termination of the fixed term contract upon its natural expiry, this 3-step process should be completed in sufficient time to enable the employee to be afforded his/her proper entitlement to the statutory or contractual notice period (whichever is the greater). Page 6 of 8
7 Aims of policy/practice or plan Fixed Term Contract Sponsor: Human Resources EQUALITY IMPACT ASSESSMENT SCREEN Evidence What is the evidence (eg from stakeholders) that different groups might have differing needs, concerns or priorities? Qualitative evidence eg user involvement, literature etc There is no evidence. Quantative eg data sources There is no evidence. How reliable or valid is this evidence? Is there any need to gather further evidence? N/A No although the policy is to be reviewed in three years time N/A No although the policy will be reviewed in three years time Improvement in services Whole population Particular groups Who will benefit from any None All staff service improvements as a result of this policy/activity? Promoting equality Equality of opportunity Good relations How does the policy promote equality of opportunity and good relations between groups? Impacts on Different Groups The policy promotes equality of opportunity between all staff and adheres to the legislation to ensure that staff on FTCs have equality of opportunity and access to staff benefits compared with their counterparts on permanent contracts.. It ensures that line managers are clear about their role in managing staff on FTCs fairly and consistently. This is particularly relevant to ensure that proper consideration and notice if a contract needs to be terminated. Degree of positive or negative impact on Strong Moderate Weak or nil (indicate numbers where known) Disabled people None None None Black and Minority Ethnic people None None None Men None None None Women None None None Transgender and transsexual people None None None People of different ages None None None People of different religions or beliefs None None None Page 7 of 8
8 Degree of positive or negative impact on (indicate numbers where known) Sexual orientation (gay, lesbian, bi-sexual men and women) Impacts on health inequalities Does this policy/activity reduce or worsen health inequalities? Accessibility of information How will we ensure information about this policy/activity is accessible to disabled people, black and minority ethnic people, men, women, transgender and transsexual people, those of different ages, belief and sexual orientation? Mitigation measures What policy changes to mitigate adverse impacts would you recommend? Strong Moderate Weak or nil None None None. The assessment has not identified any direct impacts on health inequalities arising from this policy which is intended to address employment inequalities. It will appear on the Organisation s web site. None. Actions Actions arising from the assessment. Is an Action Plan required? Monitoring How is it intended to monitor the impacts of the proposal/policy/service? No - although the policy will be reviewed in three years time. None identified. Page 8 of 8
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