A fixed-term employment contract is not a permanent contract because it can be brought to an end by a trigger; it has a limited duration. There are three types of fixed-term contract according to the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002; they are distinguished by the trigger that ends the contract.
Fixed-term contracts are acceptable if they are used appropriately to cover the genuine absence of a post-holder or to cover a specific time-limited task. The NEU opposes the inappropriate use of fixed-term contracts and also their repeated renewal where a permanent post would be more appropriate.
For short periods of work, employment on a fixed-term or temporary contract is often preferable to employment on a supply or agency basis. Fixed-term contracts provide greater security of employment and can give access to preferential benefits such as sick leave and maternity pay.
Fixed-term employee rights
The 2002 regulations provide that employers must not treat fixed-term employees less favourably than similar permanent employees with regard to pay, conditions of service and pensions, and place restrictions on the repeated use of fixed-term contracts.
You have the right not to be subjected to any detriment, act or failure to act by the employer on grounds that you are a fixed-term employee. In addition, all workers have specific protection from discrimination at work under the Equality Act 2010. You are protected whether you are permanent, fixed-term, full-time, part-time, supply or agency.
The regulations apply to all staff employed on fixed-term contracts.
Supply teachers who have an employment contract with an employer are included, as are staff who have been introduced to a school by an agency but then enter into an employment contract with a school, local authority or academy trust.
Early career teachers (ECTs) employed on fixed-term contracts during their induction year will be covered by the regulations.
Agency workers who are engaged directly by an employment agency are specifically excluded by the regulations unless they are employed on an employment contract with the agency.
Similarly, students on training courses will not be able to rely on the regulations.
Contractual terms and conditions
Employers are not prevented from using fixed-term contracts in the first place, but they are prohibited from giving less favourable terms and conditions on the basis of your fixed-term status, unless they can objectively justify the treatment.
This means that you have the right on a pro rata basis to the same pay and other contractual provisions, such as pay and paid bank holidays, as your permanent counterparts. You have the same access to grievance procedures and the same rights under disciplinary and capability procedures.
When a fixed-term contract ends on the date specified in the contract, the employer will not normally need to give notice although it is good employment practice to do so. If there is no specified end date but a task ends or the substantive post-holder returns earlier than expected, notice must be given by the employer in accordance with the contract.
If you are a teacher employed under the Burgundy Book (the national agreement on teachers’ conditions of service in England and Wales), employed for more than one term and you are not covering for a permanently appointed teacher, the usual notice periods apply should you or your employer wish to terminate the contract before it expires.
Statutory employment rights
Your employer should not treat you less favourably on the grounds of your fixed-term status in the way it applies statutory employment rights to you.
Entitlement to a permanent contract
The 2002 regulations include a mechanism for restricting the use of successive fixed-term contracts – this is not allowed to last longer than a combined period of four years. A fixed-term employee who has been engaged for four years on two or more fixed-term contracts will be entitled to become a permanent member of staff, unless the use of a fixed-term contract is objectively justified.
You will become permanent if you accrue four years' continuous service on two or more fixed-term contracts with the same employer unless the previous fixed-term contract or the renewal is justified on objective grounds.
If you are a teacher employed on a full-time fixed-term or temporary contract, you automatically pay pension contributions to the Teachers’ Pension Scheme unless you choose to opt out.
Access to training
The regulations state that employees on fixed-term contracts should have the same opportunity to receive training as permanent employees unless less favourable treatment can be justified.
Notification of vacancies
The regulations also state that employees on fixed-term contracts have the right to be informed of available vacancies at their workplace.
Employers may avoid liability for discrimination against fixed-term employees if they can justify the less favourable treatment on objective grounds.
It is for an employment tribunal to determine whether or not the less favourable treatment has been justified objectively.
Part-time fixed-term teachers
If you are a part-time fixed-term worker, you have the right not to be treated less favourably on the grounds that you are part-time as well as on the grounds that you are on a fixed-term contract.
How can I tell if I have been treated less favourably?
You would have to compare your contractual terms or treatment to that of a permanent employee who, at the time that the less favourable treatment is alleged, is:
- employed by the same employer, and
- engaged in broadly similar work, and
- based at the same establishment or, if there is no comparable permanent employee at the same establishment, at a different establishment.
The comparator should have a similar level of qualification and skills as you, but they need not have similar experience.
What should I do?
Gather all the written evidence that you have, for example, job adverts, letters, emails and relevant screenshots. Keep a diary of all incidents of less favourable treatment including dates, times, places, the names of any witnesses and your response to the treatment.
Ask your workplace rep or school or college office for copies of relevant workplace policies, for example, recruitment policies, capability procedures, redundancy policies. Discuss your concerns with your workplace rep. The NEU will be able to advise what steps you should take.
What more can I do to protect myself and colleagues?
Employers in the education sector have responsibilities towards their fixed-term staff. They also have a statutory duty to be proactive in eliminating discrimination and promoting equality of opportunity for staff. They must assess the impact of their policies and procedures on the people affected by them and take steps to remove any barriers that come to light where it is proportionate to do so. Contact your workplace rep or branch secretary if you want to get involved in reviewing the impact of policies and procedures on fixed-term staff in your workplace.