Fixed Term Staffing Policy Who Should Read This Policy Target Audience All Trust Staff Version 1.0 October 2015
Ref. Contents Page 1.0 Introduction 4 2.0 Purpose 4 3.0 Objectives 4 4.0 Process 4 4.1 Recruitment of a Fixed Term Contract Post 4 4.2 Extension of Contract 5 4.3 Termination of Contract 5 4.4 Termination of Fixed Term Contracts on Other Grounds 6 4.5 Exceptions to Normal Termination Process for a Fixed Term Contract 4.6 Redundancy 6 4.7 Appeal 7 5.0 Procedures connected to this policy 7 6.0 Links to Relevant Legislation 7 6.1 Links to Relevant National Standards 7 6.2 Links to Other Key Policy/s 7 6.3 References 8 7.0 Roles and Responsibilities for this policy 9 8.0 Training 10 9.0 Equality Impact Assessment 10 10.0 Data Protection Act and Freedom of Information Act 10 11.0 Monitoring this Policy is Working in Practice 11 6 Appendices 1.0 Fixed Term Contract Procedure Flow Chart 12 2.0 3.0 4.0 Termination of Fixed Term Contract Meeting 13 Outcome of Termination Meeting 14 Appeals Process 15 Version 1.0 October 2015 2
Explanation of terms used in this policy Fixed-Term Contract - Employment contracts that are agreed for a fixed period, i.e. they have a defined beginning and end date. They should only be used when circumstances make it inappropriate to employ an individual under a substantive contract Less Favourable Treatment - Incorporates the overall package of benefits, whether contractual or not, that a comparable substantive employee gets, or when it is offered on less favourable terms. It includes when an employer fails to do something for a fixed term employee that is done for a substantive employee. For example pay and annual leave entitlement (pro rata). Employees on fixedterm contracts are entitled to the same terms and conditions of employment on a pro-rata basis as the terms and conditions of a comparable substantive employee Version 1.0 October 2015 3
1.0 Introduction This policy and procedure has been developed to ensure Black Country Partnership NHS Foundation Trust (hereafter referred to as the Trust), applies consistent and fair treatment of staff on fixed term contracts in accordance with the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 in that management understand and apply a consistent application, as such only the following may be considered for the use of applying a fixed term post: The post is a clearly defined training or career development position where there is a specified period The post has been set up to carry out a temporary or time-limited task, project or piece of work The post requires specialist skills for a limited period of time or to accomplish a particular task or project for a limited period There is clear time-limited funding for the post The post is to provide cover for maternity, career break, secondment, sabbatical, organisational change or other absences to enable service continuity The Trust acknowledges that where an employee on a fixed term contract considers that they have been treated less favourably, the employee has the right to ask for a written statement setting out the reasons for less favourable treatment if they believe this may have occurred. This should be raised through the Trust s Grievance Appeal s Procedure. This policy and procedure applies to all Trust employees, including Medical and Dental staff. It does not apply to external agency placements, consultancy positions, contractors, Apprentices and Clinical Students on work placements, Trainee Doctors who would rotate from placement to placement and Trust Bank Staff who are employed on flexible agreements where notice is not issued all of whom would be exempt from Fixed-term Employment Regulations. 2.0 Purpose The purpose of this policy is to provide guidance for staff within the Trust about the requirements and processes for Fixed Term Contracts. 3.0 Objectives The overarching aim of this policy is to ensure that individuals are treated in the same way as comparable substantive staff in relation to opportunities for training where appropriate, promotion, transfer and be included as part of the performance management process. 4.0 Process 4.1 Recruitment of a Fixed Term Contract Post Where a post has been identified as fixed-term it will be advertised in the normal manner but will state that the contract is fixed-term. The end date/ reason for fixed term contract should also be stated, and should, unless authorised always be for less than 2 years. The reason for the fixed-term will be expressly stated in the contract of employment issued and must include the end date. Version 1.0 October 2015 4
4.2 Extension of Contract In order to meet best practice the number of renewals or extensions to a fixed-term contract should be limited and if contracts are extended or renewed after the planned end date this should be in consultation with Group Human Resource Business Partners and Finance leads. Consideration should be given as to whether the post should in fact be a substantive post. Any approved extensions or changes to the fixed term contract must be confirmed in writing by the manager to the employee and the information sent to payroll in a timely manner using the appropriate documentation. Where an employee has accrued 4 years continuity of service on fixed-term contracts with the Trust (these can be in different roles within different service areas) they will automatically acquire substantive status, unless there is an objectively justifiable reason that this should not be the case (e.g. where a Fixed Term Contract is necessary to achieve a legitimate objective). 4.3 Termination of Contract Fixed-term contracts will normally end automatically when they reach the agreed end date. The Trust doesn t have to give any notice, however the following process will be applied in order to ensure best practice and our legal duties are applied: Failure to renew a fixed-term contract at the end of the Fixed Term period may be deemed to be a dismissal by law. To demonstrate that the dismissal was fair it must be shown that it was reasonable not to renew the contract and that the appropriate dismissing procedure was followed, otherwise the dismissal will be automatically unfair. The manager must write to the employee, inviting them to a meeting at which they will be formally notified of the termination of their contract, in accordance with the employee s terms and conditions. The meeting should take place within 10 working days of this letter being sent. This meeting should involve the manager, Human Resources (HR) and the employee, the employee is entitled to bring a Trade Union representative or a colleague who is an employee of the Trust who is not acting in a legal capacity to support them at this meeting. The meeting will take place in a timely manner to allow the manager to give the employee their contractual notice. Failure to organise and meet the employee within the specified time scale may result in the contract being extended to cover the employee s contractual notice period. The employee must take all reasonable steps to attend the meeting. At the meeting, the manager must explain the reason for the fixed-term contract ending and give the employee the opportunity to respond. The manager must confirm the outcome of this meeting to the individual in writing. The manager should send a copy of this letter to Human Resources. Version 1.0 October 2015 5
The employee must be informed of the right to appeal against the decision. 4.4 Termination of Fixed Term Contracts on Other Grounds If Managers need to end the fixed term contract before the end date specified in the contract of employment for example if a change in funding occurs, they should contact HR in the first instance. Managers must deal with cases of poor performance, misconduct and capability, sickness and any other employee relations issues under the appropriate Trust policy and procedure. 4.5 Exceptions to Normal Termination Process for a Fixed Term Contract In certain circumstances it may not be appropriate to terminate a fixed term contract at its end date, for example if the employee is pregnant. In these circumstances please refer to the relevant Policy and Procedure for example the Maternity, Adoption, Paternity, Breastfeeding, Fostering and Guardianship Policy. Where this is the case managers should contact their operational HR lead in the first instance for further guidance. 4.6 Redundancy Employees with more than 2 years continuous service at the time of termination of their fixed term contract may be entitled to redundancy. The Employment Rights Act 1996 Section 139 states that redundancy arises when employees are dismissed in the following circumstances: Where the employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed Where the employer has ceased, or intends to cease, to carry on the business in the place where the employee was so employed Where the requirements of the business for employees to carry out work of a particular kind, in the place where they were so employed, have ceased or diminished or are expected to cease or diminish Employees dismissed by reason of redundancy will have the right to claim NHS redundancy payments after 2 years continuous employment with the Trust. Managers must contact Group Human Resources Business Partners if they consider that the above circumstances apply. 4.6.1 NHS Continuous Service - Effect on Redundancy Claims Employees appointed on a fixed-term contract for less than 2 years, but have continuous NHS service from another Trust, will be eligible for a redundancy payment at the end of the fixed term contract, if the definition of redundancy is met. Existing employees who transfer to a fixed-term position retain all rights as a permanent employee including the right to redundancy as linked to continuous NHS service. Managers must contact Group Human Resources Business Partner if the above circumstances apply. Version 1.0 October 2015 6
4.7 Appeal An employee whose contract has not been renewed or extended has the right of appeal. The process to be followed is outlined in Appendix 4 of this Policy. 5.0 Procedures connected to this Policy There are no procedures connected to this policy. 6.0 Links to Relevant Legislation Employment Rights Act 1996 Employment Rights Act 1996 came into force on 22 August 1996. It sets out the statutory employment rights of workers and employees. If these employment rights are breached, the Employment Rights Act 1996 gives the Employment Tribunals powers to order compensation to workers and employees. 6.1 Links to Relevant National Standards Prevention of Less Favourable Treatment Regulations 2002 The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 came into effect on 1 October 2002. The regulations are designed to give fixedterm employees the right in principle not to be treated less favourably than permanent employees of the same employer doing similar work. The provisions of the regulations apply to all new and current fixed-term contracts with effect from 1 October 2002. 6.2 Links to other Key Policies Recruitment, Selection and Appointment Policy The purpose of this policy is to provide a framework for the recruitment, selection and appointment of staff to be conducted in a manner that is effective, systematic, comprehensive and fair, promoting equality of opportunity at all times, whilst being flexible and adaptable to meet the needs of the service. Maternity, Adoption, Paternity, Breastfeeding, Fostering and Guardianship Policy This policy has been developed to provide support and guidance for staff and managers on the processes involved in applying for Maternity Leave, Paternity Leave, Adoption Leave and Breastfeeding in line with NHS Agenda for Change and statutory legislation as well as support with Fostering & Guardianship. The Trust recognises the need to support staff to balance their work and personal commitments. This policy will facilitate employees understanding of their statutory rights and obligations with regards to maternity, paternity, adoption, breastfeeding and fostering & guardianship thus enabling them to plan effectively before and after the birth, adoption or fostering/ guardianship of a child. Secondment, Nurse Training and Acting-Up Policy The term secondment refers broadly to the temporary transfer or loan of an employee to another part of the organisation or to a completely different organisation. Secondments, Nurse Training and Acting Up arrangements are increasingly being recognised as valuable for development, offering the employee career development opportunities but also provides the Trust the chance to develop its skills base. Version 1.0 October 2015 7
Organisational Change Policy The purpose of this policy is to provide a framework to enable organisational change to be managed in a systematic and fair manner, minimising the risk of redundancy and balancing the needs of employees and the organisation. Grievance and Disputes Policy This policy aims to encourage full and open communication between managers and employees with the aim of resolving any concerns quickly and as near to the source as possible. This policy has been developed to give guidance on the procedure to be adopted where early action to resolve an issue has failed and a grievance has developed. The policy has been written in accordance with relevant employment legislation and the Advisory and Conciliation Arbitration Service (ACAS) guidelines. 6.3 References NHS terms and conditions of service handbook: Agenda for Change (2015) http://www.nhsemployers.org/your-workforce/pay-and-reward/nhs-terms-andconditions/nhs-terms-and-conditions-of-service-handbook Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (2002) http://www.legislation.gov.uk/uksi/2002/2034/contents/made Version 1.0 October 2015 8
7.0 Roles and Responsibilities for this Policy Title Role Key Responsibilities Director of Workforce & Organisational Development Workforce Development Group Human Resources Department Executive Lead - Lead responsibility for the implementation of this policy - Allocation of resources to support the implementation of this policy - Ensure any serious concerns regarding the implementation of this policy are brought to the attention of the Board of Directors Responsible - Oversee the implementation of a systematic and consistent approach - Ensure that this policy is applied fairly to all staff and will continually review it to ensure it accurately reflects legislation and best practice in relation to fixed term rights - Approve all policies and procedures that relate to their subject matter or area of practice - Provide exception and progress reports to the Quality and Safety Steering Group Specialist Advise and Support - Keep a record of all staff on Fixed Term Contracts and to provide monthly notifications to managers including the end date of that contract in order to allow notice to be given in accordance with the employee s terms and conditions - Provide advice and guidance as to when the use of a Fixed Term Contract may be appropriate outside of that cited under section 2 - Provide advice regarding the termination of a Fixed Term Contract, as necessary Line Managers Implementation - Make appropriate decisions regarding Fixed Term Contracts including only requesting a fixed term appointment in appropriate circumstances - Review the appropriateness of the contract on a regular basis in line with the needs of the service - Communicate clearly to the employee the end date of the contract and whether any extension has been sought or is obtained via the appropriate written correspondence, templates for which can be found in the appendices of this Policy and Procedure All Trust Employees Adherence - Behave as any other member of Trust, bound by same Terms and Conditions - Ensure that they meet with their manager in accordance with the termination of contract procedure outlined within this procedure (refer to Section XX). Failure to comply with a manager s reasonable request to meet for this purpose may lead to management under the Trust s Disciplinary policy Version 1.0 October 2015 9
8.0 Training What aspect(s) of this policy will require staff training? How to manage fixed term arrangements effectively Which staff groups require this training? Managers Is this training covered in the Trust s Mandatory and Risk Management Training Needs Analysis document? If yes, please refer to it for details on training requirements, and update frequencies If no, how will the training be delivered? No, staff will receive specific training in relation to this policy where it is identified in their individual training needs analysis as part of their development for their particular role and responsibilities Who will deliver the training? Training will be delivered internally How often will staff require training Learning and Development Team Who will ensure and monitor that staff have this training? As Required 9.0 Equality Impact Assessment Black Country Partnership NHS Foundation Trust is committed to ensuring that the way we provide services and the way we recruit and treat staff reflects individual needs, promotes equality and does not discriminate unfairly against any particular individual or group. The Equality Impact Assessment for this policy has been completed and is readily available on the Intranet. If you require this in a different format e.g. larger print, Braille, different languages or audio tape, please contact the Equality & Diversity Team on Ext. 8067 or email EqualityImpact.assessment@bcpft.nhs.uk 10.0 Data Protection and Freedom of Information This statement reflects legal requirements incorporated within the Data Protection Act and Freedom of Information Act that apply to staff who work within the public sector. All staff have a responsibility to ensure that they do not disclose information about the Trust s activities in respect of service users in its care to unauthorised individuals. This responsibility applies whether you are currently employed or after your employment ends and in certain aspects of your personal life e.g. use of social networking sites etc. The Trust seeks to ensure a high level of transparency in all its business activities but reserves the right not to disclose information where relevant legislation applies. Version 1.0 October 2015 10
11.0 Monitoring this Policy is working in Practice What key elements will be monitored? (measurable policy objectives) Where described in policy? How will they be monitored? (method + sample size) Who will undertake this monitoring? How Frequently? Group/Committee that will receive and review results Group/Committee to ensure actions are completed Evidence this has happened Completion of attached forms 4.0 Process Forms received within the HR Department Meeting to give notice 4.0 Process Audit of database within the HR Department Human Resources Quarterly Workforce Development Group Human Resources Quarterly Workforce Development Group Workforce Development Group Workforce Development Group Minutes of meetings/ Copy of forms received Minutes of meetings/ Action plan signed off Version 1.0 October 2015 11
Appendix 1 Fixed Term Contract Procedure Flow Chart HR team sends line manager monthly report highlighting those staff on a fixed term contract with the documents below attached Template invite to attend meeting letter (Appendix A) Template outcome letter following the meeting (Appendix B) Line Manager arranges meeting with employee. This meeting should be conducted within 10 working days and must allow the manager to give the individual a minimum of the contractual notice period Meeting takes place with line manager and employee to formally serve notice. The employee is entitled to representation at this meeting If applicable, Line Manager to notify HR if the post holder has gained a permanent contract. Fixed term process will then end Copy of invite letter and outcome letter sent by line manager to employee and copy sent to HR and the relevant E form should be submitted Contractual notice periods Band 1-6 Band 7 Band 8-9 4 weeks 8 weeks 12 weeks Notice periods for Doctors are detailed in the terms and conditions handbooks available on the NHS Employers website (www.nhsemployers.org) Version 1.0 October 2015 12
Appendix 2 Termination of Fixed Term Contract Meeting DATE NAME ADDRESS Dear XXX Re: Invite to meeting regarding termination of Fixed Term Contract of Employment In line with the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, in order to give you notice of your fixed term contract due to end on xx/xx/xxxx as ***** in *****, it is my intention, to invite you to a meeting to discuss the above and issue you formal notice to enable the termination of your fixed term contract. This meeting will take place on ****** at ***** in *******. You have the right to invite a trade union representative or friend, who is an employee of the Trust to this meeting. If you are unable to attend this meeting or would like further information then please do not hesitate to contact me. Yours sincerely Managers Name Job Title cc; HR Representative Version 1.0 October 2015 13
Appendix 3 Outcome of Termination Meeting DATE NAME ADDRESS Dear XXX Re: Termination of Fixed Term Contract of Employment: Outcome Letter Thank you for meeting with xxxxxx on ****** regarding your fixed term contract of employment. You were informed of your right to be represented at this meeting by a trade union representative or friend, who is an employee of the Trust. <You were represented by X / You were accompanied by X / You were happy to have this meeting without a representative with you >(select as applicable). I explained that we were meeting in line with the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations in order to give you notice of the ending of your fixed term contract of employment as <job title> in <department> As stated in your contract of employment this post was a fixed term role for <X months> due to <reason for fixed term contract>. I confirmed that formal notice was therefore being given to you from the date of this meeting, <date>, that your fixed term contract of employment will cease on <date>. You do have the right to appeal the termination of your fixed term contract of employment. Should you wish to exercise this right then I would refer you to the Trust s Appeals process set out under within the Trust s Fixed Term Policy (Appendix X). Any appeal must be made in writing within 10 working days of receipt of this letter. I would also like to take this opportunity to thank you for the work you have done in the department and wish you well for the future. Finally please do not hesitate to contact XXXXX HR Business Partner, if you wish to discuss anything further with regards to this letter. Yours sincerely Dismissing Officer Name Job Title cc: HR Representative Version 1.0 October 2015 14
Appendix 4 Appeals Process Outcome to terminate fixed term contract Employee must submit appeal within 10 working days of notification of outcome of the Fixed Term Hearing to Director of Corporate Services. The letter of appeal must state grounds for appeal. The appeals process is against the basis of the decision Where feasible an Appeal will be heard within 30 days of submission. An appeal panel with include the following level: A Trust Director and a Senior Member of the Human Resources team previously not involved The Chair of the appeal panel shall notify the employee and their representative in writing of the day, time and place of the hearing at least 5 working days before it is due to take place Both the Dismissing Officer and the employee will be asked to submit a written statement of case and should fully address the stated grounds for the appeal. The timeframe for submission should be a minimum of 5 days prior to the hearing date The outcome of an appeal hearing will be one of two decisions: To uphold the decision given; or To uphold the staff appeal and remove or amend outcome imposed The outcome will be provided to the employee within 5 working days of the appeal Version 1.0 October 2015 15
Policy Details Title of Policy Unique Identifier for this policy State if policy is New or Revised Fixed Term Staffing Policy BCPFT-HR-POL-10 New Previous Policy Title where applicable Policy Category Clinical, HR, H&S, Infection Control etc. Executive Director whose portfolio this policy comes under Policy Lead/Author Job titles only Committee/Group responsible for the approval of this policy Month/year consultation process completed * n/a Human Resources Director of Workforce and Organisational Development Head of Operational HR Workforce Development Group January 2015 Month/year policy approved September 2015 Month/year policy ratified and issued October 2015 Next review date October 2018 Implementation Plan completed * Equality Impact Assessment completed * Previous version(s) archived * Disclosure status Key Words for this policy Yes Yes n/a B can be disclosed to patients and the public Less favourable treatment, Fixed term contract, Recruitment of a fixed term contract post, Extension of contract, Termination of contract, Redundancy, Appeal, Fixed Term Contract Procedure Flow Chart, Termination of Fixed Term Contract Meeting, Outcome of Termination Meeting, Appeals Process * For more information on the consultation process, implementation plan, equality impact assessment, or archiving arrangements, please contact Corporate Governance Review and Amendment History Version Date Details of Change V1.0 Oct 2015 New Policy developed for BCPFT Version 1.0 October 2015 16